In other words, New York's Domestic Relations Law provides a default regime, but a prenuptial agreement allows you to allocate rights and responsibilities of your marriage in a way that makes the most sense for you and your spouse.
Q: What kinds of things go in a prenuptial agreement?
The most typical purposes of a prenuptial agreement are probably:
- to define what constitutes marital and separate property;
- to define what the spousal maintenance would be (or a mutual waiver) in the event of a separation or divorce; and
- to waive or modify estate rights
Q: What does that mean: "to define what constitutes marital and separate property?"
The default is that marital property is whatever you acquire during the marriage, regardless of title.
So, if you save $100,000 during the marriage and put it in a bank account in your name, it's marital property even though the bank account is in your name.
A prenup could, and this is just a simple example, but it could define marital property to be only property that is held in joint names. That way, whatever each party earns and saves remains their own. But a joint checking/savings/investment account would be marital property.
As far as real property, the concept is the same; by default, real property acquired during the marriage belongs to both parties even if only one spouse's name is on the deed. A prenup could state that real property belongs exclusively to the party holding title.
Q: I want the prenup to state that if we divorce, I would have custody of the children. Can we do that?
No, a prenup cannot define who has custody of the children, nor can it set an amount of child support.
Q: Do both of us need our own attorney?
Technically, no, but as a practical matter, yes. Each party should have their own attorney to explain the legal ramifications of the proposed agreement and the potential pitfalls in the event of a divorce. A prenuptial agreement entered into by a party without counsel is more vulnerable to being set aside down the road on the basis that it was fundamentally unfair or that the unrepresented party did not understand it.
Q: What is a post-nuptial agreement?
It's the same thing as a prenuptial agreement but is entered into (signed) following the marriage, not before. For that matter, both a prenuptial agreement and post-nuptial agreement are basically a form of separation agreement except that the parties are not separating. All three are binding contracts authorized by a single provision of the Domestic Relations Law, whose purpose is to allocate or distribute marital property and responsibilities upon the occurrence of certain events.
Q: What is the fee for a post-nuptial agreement?
It depends on the level of complexity. A simple "what's mine is mine, what's yours is yours" prenup where both parties are in agreement could be handled for as little as $800. A prenup that requires some customization, or where the client needs some help thinking through the possibilities, would typically be in the neighborhood of $1,500 - $2,000.