Practice Areas Archive – Lauren L. Hunt Esq., PLLC

Spousal Maintenance

Dedicating one’s personal talents and strengths toward building a family is a beautiful, and incredibly worthwhile experience. However, the pursuit of this joint endeavor can sometimes come at the expense of one spouse’s career or employment advancement.

While married, these sacrifices aren’t usually a big deal. In the post-divorce world, though, they can suddenly become a much bigger issue—especially for those who spent much of their adult years reliant on the income of a spouse.

In order to ensure divorce doesn’t have disproportionate financial consequences for one spouse over the other, New York courts will often award one partner spousal maintenance, in order to help them get back on their feet, post-divorce.

Spousal Maintenance: Overview

Spousal maintenance (sometimes called “alimony,” or “spousal support”) is not the same thing as child support. Instead, these are separate payments that are specifically designed to help stay-at-home spouses become financially independent after divorce.

Gender Doesn’t Matter

New York does not limit spousal maintenance by gender, or sexual orientation in any way. Instead, entitlement to an award of maintenance is based mainly upon income – with a requirement that the “more monied spouse” is required to pay maintenance to the “lesser monied spouse” so long as there is a big enough difference in their incomes to require an award.

Calculating Spousal Maintenance

The statute now contains a formula which considers both parent’s incomes. The result of this formula is considered the “presumptively correct spousal maintenance award.” This award can be increased or decreased but only if the circumstances require adjustment.

Changes to the presumptively correct amount are hard to achieve but can occur if a court believes that the presumptive award is “unjust or inappropriate” based upon review / consideration of the following factors:

A change to the presumptively correct support obligation is very tough to obtain, though, it is possible.

How Long Does Spousal Support Last

The maintenance law contains “durational guidelines” that judges use to determine how long a maintenance award should be paid. The guidelines base the length of the award upon the length of the marriage, as shown below:

Length of the marriage Percent of the length of the marriage for which maintenance will be payable

Up to and including 15 years: 15% – 30%
More than 15 up to and including 20 years: 30% – 40%
More than 20 years: 35% – 50%

Temporary Spousal Maintenance

Divorce isn’t usually quick, and—unfortunately—bills don’t suddenly stop just because you’re going through a rough patch.

In the event that spouses are living in separate homes while they go through a divorce, a judge can order temporary payment of maintenance. This will ensure that the lesser-monied spouse is properly supported. If the spouses live together, a temporary spousal support award may be issued but often the result of a request for interim maintenance (when couples live together) is the agreement as to which spouse will pay what bill and how much discretionary income will be provided to the non-monied spouse.

Lauren L. Hunt: New York Divorce Attorney

Divorce is an uncertain time for many reasons, and financial / income concerns can be one of them. New York State law has clear formulas and obligations for spousal support; all of which is meant to ease those financial fears.

If you have more questions about spousal maintenance, and how these laws could affect your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together we can ensure that you receive the financial support you are entitled to.

Child Support

For divorcing parents, some of the most common concerns revolve around child support. Because raising a child is tough. And expensive. From diapers, to cheddar bunnies, to school clothes, to college, the cost of raising a child only increases, the longer they’re alive. So, naturally, this can beg some pretty serious questions about where that money is going to come from once the couple is divorced.

The short answer to this is: it depends.

The long answer is, that who pays and how much will depend entirely on your custody arrangement, how many kids you have, the income level of both you and your spouse, and can be altered, capped, or increased based on a number of individualized factors.

For more on this, let’s take a look.

Child Support Overview

In case you weren’t already aware, parenting is a lifetime gig. Divorce might sever your spousal obligations, but your obligation to financially support your children remains in tact. Thus, child support is simply one way for the court to ensure that the financial responsibility of raising the children is shouldered by both parents.

What is Included?

Child support in New York consists of two main items: the basic child support obligation and the mandatory “add-on” costs. Parents can agree to add in any other terms they want, or to deviate (change) from the statutory requirements as they can agree, but the agreement or support order must at the very least address these two items.

Basic Child Support

Basic child support is a set payment (paid typically in line with the party’s pay check) from the non-custodial parent to the custodial parent. In the instance of equally shared physical custody, basic child support is paid from the higher wage earner to the lower wage earner.

The dollar amount of this payment is set out in the Child Support Standards Act (CSSA) statute. It is a percentage of the non-custodial parent’s income. The percentage to be applied is based upon the number of children to be supported. The percentages are:

1 child = 17%
2 children = 25%
3 children = 29%
4 children = 31%
5 or more children = no less than 35%

Be aware that “income” for the basic child support obligation is not a parent’s gross income. Instead, it is their gross income less certain statutorily authorized deductions (typically for FICA taxes, support paid under other orders, etc). Those payments are deducted from the parent’s gross income to arrive at their “net CSSA income.” From there, the appropriate percentage is applied.

For example, if the non-custodial parent earns $50,000 per year and pays FICA taxes of $3,825, then the net CSSA income is $46,175.00. If they have 1 child, then the basic child support obligation is 17% of that number, or $7,849.75 per year.

The determination of a parent’s income can be tricky, especially if they are self-employed, under-employed, or have been out of the workforce for a period of time. If you are concerned that your spouse’s income is lower than reasonable, then it is important to speak with your attorney about your spouse’s work history, history of earning, and employability.

Lastly, be aware that the parents (or a judge) can deviate from the formula above. If the parents agree to deviate, they can do so for nearly any reason. If the judge decides to deviate, it is only after a hearing and the deviation would need to be based upon any or all of the following factors:

Other financial resources;
The physical health of both spouses;
Standard of living enjoyed by the child;
Any tax consequences;
The child’s educational needs; and,
Any obligations the noncustodial parent might have to other children.

Other items to be aware about, in calculating basic child support, is the income cap. The CSSA is automatically applied to the parent’s combined incomes up to a certain income level. This income level changes every few years. It is best to speak with your attorney about how to request that child support be based upon all income, even that which is above the cap.

Mandatory Add-On Expenses

The CSSA requires that the parents share the following expenses: the cost of the child’s portion of the health insurance premium, the child’s uncovered medical costs, the costs for child care required to allow a parent to obtain or maintain employment. Parents can agree to share other costs (such as extra-curricular activity costs) but they are not required to do so.

The add-on expenses are typically shared in proportion to the parent’s respective incomes or in some other way that the parents mutually agree upon. The process of tracking reimbursements can be tedious and time-consuming so many parents use a co-parenting app such as Fayr or Our Family Wizard to help keep these items straight.

Other Details to be Aware Of

In New York, child support payments continue until the child is twenty-one (even if they leave for college), unless they get married, enroll in the military, or otherwise voluntarily emancipate themselves.

In addition, child support is modifiable based upon any of the following events: (1) a change in circumstances after the date of the last order of support, (2) the increase or decrease of either parent’s income by 15% or more since the last order, and (3) the passage of 3 years from the date of the last order. Parents can agree to waive the application of the last two bases for modification but they cannot agree to waive the first basis for modification.

Lastly, be aware that a general provision for child support will not account for college costs. Rather, these expenses are usually addressed in a separate provision of your order. You should be sure to speak with your attorney about whether it is appropriate to include these terms in your order so that you are not prohibited from requesting them in the future.

Failure to Pay Child Support

The parent receiving support is not obligated to “prove” how they are using the support to provide for the children. For this reason, paying child support can be frustrating for some parents. They do not like the idea of providing payment without any proof or assurances that the money will be spent on the children. However, as irksome as this might be, these payments are not optional.

Child support orders are as binding as any other law, and failure to pay can have serious consequences. Some of which might include garnished wages, driver’s license suspension, and in some cases, even jail time.

If there is a legitimate reason you are suddenly unable to make payments, be sure to notify the court as soon as possible, to see if your order can be adjusted.

Two Wrongs Don’t Make a Right

While additional payments might be stressful for a payor, not getting support payments can cause even more strife for a custodial parent and, by extension, a child. And when this happens, a primary parent might find themselves tempted to withhold visitation as a just form a punishment. However—as the saying goes—two wrongs do not make a right.

Parental rights are highly regarded by both state and federal governments, and a parent’s right to access their child is one of them. Courts do not take attempts to subvert these powers lightly—regardless of the cause. If you are having problems receiving full and timely payments from your spouse, your attorney can help you address these issues through legitimate channels.

Lauren L. Hunt: New York Divorce Attorney

Divorce is hard on small humans, and try as we might, it’s impossible to completely shield them from the emotional impact of this life event. However, ensuring that sure your child support arrangement is executed without hassle, is at least one way you can make this new normal a little easier on yourself and, by extension, them.

If you have more questions about child support in New York, and are wondering how these laws might impact your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you develop a child support plan that will best meet your family’s individual needs.

Frequently Asked Questions

How long do I have to pay child support?

In New York, child support payments are required until the child turns twenty-one, unless a court determines a child has emancipated earlier than twenty-one. Some bases for an earlier emancipation are if the child:

Gets married;
Joins the military;
Becomes self-supporting; or,
Emancipates themselves by leaving home, and refusing to obey their parents’ reasonable requests.

If higher education is something both parents want for their child, then the obligation to contribute to college can also be included as a child support term. It is not required that a parent contribute to college.

How much is child support?

In New York, child support amounts are determined by analyzing the non-custodial parent’s gross annual income. Once deductions are accounted for, this number is multiplied by a percentage, based on the number of children the couple shares:

One child: 17%
Two children: 25%
Three children: 29%
Four children: 31%
Five or more children: at least 35%

Judges are also permitted to adjust the final amount, if needed. In addition to the formula amount, the parents are required to share certain “add-on” expenses which are: the child’s share of the health insurance premium, the children’s uncovered medical expenses, and the cost for the children’s childcare. Parents can agree to share other expenses if they so agree.

Who pays basic child support?

In New York, the party responsible for paying basic child support will be the parent who is the “non-custodial” (the visitation spouse) parent or, if the parents equally share parenting time, the parent with the greater income.

What is Child Support?

If you are a parent, then child support will be included in your final divorce order. The determination of whether you will pay child support (or receive child support) will be based upon your custody arrangement. Child support consists of a payment of “basic child support” and the “add on” expenses. For the basic child support obligation, these payments are based upon a formula and made in regular installments most often in line with the payor’s paycheck, and are almost always paid by the non-custodial parent. This ensures that both spouses bear an equal amount of financial responsibility for their child’s upbringing. A parent’s child support responsibilities cannot be limited or eliminated by a prenuptial agreement. It must always be determined at the time of divorce. However, at the time of divorce, the parties can agree to deviate (or change from) the formula requirements based upon what works best for them.

Equitable Distribution

One of the biggest reasons divorce takes so long, is property and debt division. After all, it’s not just a relationship you’ve been sharing with your spouse, it’s money, property, and other tangible assets, too, and it can take a while to untangle all those years shared ownership. Especially when everything has to be analyzed beneath the nuanced scrutiny of New York’s equitable distribution laws.

The underlying goal of these rules, is to divide property in a way that sets both partners up for long term success. However, the process of getting there can sometimes be convoluted, which is why it’s a good idea to know how it works, before heading in.

Equitable Distribution: The Low Down

New York is an equitable distribution state. The famous saying is that “equitable does not necessarily mean equal,” however, most of the time the issues of property and debt division are resolved by an equal division of the marital assets (and debts).

The process of determining equitable distribution requires three distinct steps: classification, valuation, and division.

Classification: Separate Versus Marital Property

The first step in equitable distribution is determining what has to be distributed. In New York, only marital assets are subject to equitable distribution. Marital assets are any assets acquired from date of marriage to date you commence an action for divorce, sign a separation agreement, or any other agreed upon date. The manner in which title is held does not matter in classifying an asset as “marital” or “separate.” So, all that matters is when the asset was acquired – not whose name the asset is in (which means, yes, the bank account in your sole name may be a marital asset!). Marital assets includes real property (like your home) but also money in 401(k) accounts, as well as stocks, bonds, and any other investments you might have. If the accounts pre-date your wedding, whatever percentage you owned prior to marriage will be considered separate property, while the remainder is marital.

The only assets not subject to equitable distribution are assets that are classified as “separate property.” Separate property is all assets that were acquired before marriage, through inheritance, gift from someone other than your spouse, property designated your separate property in a prenuptial agreement, property you receive in exchange for your separate property, or personal injury settlement.

This classification might seem straightforward, but after years of mixing and interchanging separate and marital property, tracing ownership back to your pre-marriage days might be harder than you think.

Valuation: What is the Asset Worth

This step is often one of the simplest – in the valuation portion of equitable distribution, you simply determine the value of the individual assets. Most often, this is done by looking at the bank statement, retirement statement, or obtaining an appraisal of the marital residence. If, however, there is a business interest then a more in-depth, and formal, valuation may be required to make sure that the true value is realized and distributed between spouses.

Distribution: Who Gets What

Once prior steps are complete, it’s time to divvy things up.

So long as you have clear proof of ownership, any separate property will leave with whichever spouse brought it into the marriage. As for everything else, in lieu of a valid prenuptial agreement, all marital property will be subject to an equitable distribution between partners.

Determining What’s “Fair”

In order to ensure your division is as fair as possible, the court will analyze a number of individualized factors, some of which will include:

The education level, earning potential, and property owned by both partners;
How long you were married;
Your standard of living;
Age and physical health;
Any minor children, as well as custodial responsibilities;
Spousal support;
Pensions, insurance, and other benefits that your divorce might sever;
Business ownerships, partnerships, or shares—both their value, and whether or not having an outside interest would affect said value;
Taxes; and even,
How responsible both of you have been in handling your finances over the years.

This list isn’t exhaustive, and, in fact, judges are free to evaluate any other factors they think are relevant to an equitable split. For example, the career sacrifices made on behalf of a homemaking spouse. Or, if one partner financially contributed to the other’s education. Even obligations one party might have to a disabled child or incapacitated parent might be relevant.

As mentioned above, most often, the result is an equal division of the assets. This may be equal division of each individual asset or a result which – overall results in an equal division (even though individual assets may not be equal).

Air it All Out

Speaking of success, one element of property division that is crucial to a hassle-free resolution, is not hiding anything.

This bit of advice can’t be stressed enough. Financial investigators are well versed in the tricks people pull to hide assets, so the chances of you getting away with something are slim, and the penalties severe. Lying in court—even if it’s “just” in your divorce—is still perjury. And attempting to conceal money, or even undermine the worth of something, is fraud. Both of these crimes carry hefty punishments, including fines, subpoenas of all tax and income records, and in some cases, even jail time. Even worse than all of the foregoing, though, is that if you are found to be lying your credibility with any judge is destroyed – which can have devastating consequences on your overall matter.

In the end, your honesty and forthcoming will earn you respect of the court, and a faster more economical resolution.

Fault and Property

Finally, it’s important to note, that marital fault – or the reason why the marriage is coming to an end – does not impact equitable distribution. Having said that, there are instances when a spouse’s “bad behavior” may impact equitable distribution – for example, a gambling problem which created significant debt may lead to an unequal division of the assets. This is one area where it is important to have full understanding of the nuances of the law as it applies to your situation. Therefore, it’s important to discuss these matters with your attorney, if you think they might come up in your divorce.

Lauren L. Hunt: New York Divorce Attorney

The process of dividing property can be painstaking and arduous, especially for those who were married a long time or have assets that may be part marital and part separate

If you have more questions about marital property in New York, and how these laws might affect your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you receive the property division that’s equitable for you.

Frequently Asked Questions

How are marital assets distributed?

Finally, once classification and valuation are complete, the court will divide marital property according to the rules of Equitable Distribution. Under these guidelines, the saying is that “equitable does not mean equal” however most of the time equitable distribution results in an equal division of the marital assets in New York State. The division of property and debts, and determination of whether it is an equal or unequal division, is based upon a series of factors that range from age and health of the parties to their economic or noneconomic contributions to the asset(s).

How are marital assets valued?

Once property has been classified, the court must assign a value to marital assets. Often, this can easily be accomplished through bank statements and account records. In some cases, it may also be necessary to hire an appraiser to get the approximate value of real property or to value a business. In regards to assets that were created prior to the marriage, but added to during the marriage, such as business interests, retirement accounts, and other investments, courts will determine value based on what percentage of the account or interest accumulated while the couple was married.

What is separate vs. marital property?

The first step of property division is to classify an asset’s ownership as either marital or separate. Property accumulated after marriage by either spouse is called marital property and both spouses have a right to it (regardless of whether the asset, paycheck, account, mortgage, or card is in just one person’s name). Therefore, even if you and your spouse have kept your bank (or other) accounts titled in your own name, if your paycheck was deposited into the account, it may be considered marital property (because your paycheck is marital property). Assets acquired prior to marriage, however, are considered separate property, and if kept separate through the marriage, will leave with whichever party brought it into the union. Gifts, inheritance, and personal injury money are also considered separate if kept separate.

How is property divided in divorce?

When couples divorce, one of the biggest issues a court must resolve is how to divide marital property and debts between the spouses. These considerations incorporate all tangible assets, real property (such as a house, or other land ownership), and finances that the couple accumulated while married, including bank accounts, stocks, bonds, retirement accounts, and investments, and even, debt. New York breaks this process down into three basic steps: 1) Classification; 2) Valuation; and 3) Division.

Children

Divorcing couples might not see eye to eye on much, however, those with children can usually agree that no one is more important the littlest of their brood. In fact, minor children are often the main reason people put off divorce, as many parents worry about how a divorce may impact their child.

Luckily for parents, these concerns are shared by the state of New York. The court understands that, during divorce, each decision will have long-lasting, and far-reaching effects on a child’s emotional and physical well-being. As such, the goal in any custody matter is to make sure that the children’s issues are resolved in a way that makes sense for that particular family.

Best Interest of the Child

When making decisions involving children, the court evaluates all facts through the scrutinizing lens of the “Best Interest of the Child” standard (also known as the “Best Interests” test).

Under this principal, every decision that impacts a minor is made with the child’s overall well-being at the forefront—not just as it applies to their short-term happiness, but in regards to their long-term growth and emotional welfare, too.

As a parent, your perspective on this front is a valuable resource to the court. However, it isn’t infallible, and occasionally, your wishes might get overruled in favor of what the judge believes is in your child’s best interest. A judge-decided custody resolution is, often, not the best option for families as a judge can never understand your children and family dynamics as well as you and your spouse. Stated a different way – if you want a result that is actually tailored to your family’s needs – the best way to do that is through an out of court settlement. Couples who are able to settle out of court are usually much happier with their final outcome, since it offers them much more control over the terms – and, in effect, their children’s lives. However, sometimes you cannot find a way to reach a resolution out of court. In those instances, understanding the custody laws can be vitally important.

Custody and Visitation

In layman’s terms, “custody” is essentially the delegation of parental power, and can be broken down into two main categories: legal and physical. Each category has to be addressed in any custody settlement or custody order, therefore, it is essential to understand both and how they apply to your family.

Legal Custody

Legal custody is decision-making for a child; specifically, decisions in the following areas: education, medical needs, religious upbringing, general health, welfare and morals. Legal custody can be resolved in the following ways:

Joint legal custody: where the parents have to jointly discuss and agree upon all matters,
Sole legal custody: where one parent has total control over all matters; and
Modified joint legal custody with final say: Where the parents have to discuss all matters but if they cannot agree, one parent has final decision-making power.

Of the above resolution types, Joint Legal Custody is the most frequent resolution. This is because the inherently imbedded right of a parent to choose how their child is raised is highly regarded by both state and federal courts. As a result, judges are loath to take it away from either parent. The only times the court might limit these rights, is if doing so is absolutely necessary to avoid future harm to a child.

Physical Custody

Physical custody refers to where the child will live on a day-to-day basis.

In New York, the court maintains that a child’s best interests are served by having a loving, healthy relationship with both parents. Judges like to find resolutions for physical custody that ensure the children will see each parent on a frequent basis. There is a trend in New York to arrangements where the parents equally share physical custody. This is called “equal parenting time.” However, in some situations, the family needs a situation where the children live primarily with one parent (the “primary custodial parent”) and visit the other parent (for, “parenting time.”)

A number of factors contribute to a physical custody schedule, including children’s needs, the availability of both spouses, overall home environment, educational opportunities and the children’s wishes (to varying degrees). The court is will also consider whether the parents can help their child foster a relationship with the other parent.

Parenting Time

When a child’s time is split unequally between partners, leaving one parent as the “primary custodial parent” and, then the other parent will have “parenting time.”

In situations where substance abuse or violence is a concern, a judge may order supervised visitation. Supervised visitation is exactly that – it is when a parent’s parenting time is supervised by a third party to make sure that the children are safe. The supervisor may be a friend, family member, mutually agreed upon third party, or a person from a supervised visitation agency.

Does My Child Have a Say?

Children are young and impressionable, and—as anyone who has battled vegetable-eating and teeth-brushing tantrums can attest—they aren’t always capable of knowing what’s actually best for them.

Because of this, the children’s wishes may come into play in a custody case to varying degrees. The saying in this respect is that “children have a voice, but not a vote.” Though, as a general rule, the closer the child is to eighteen, the greater weight these wishes are given.

Adultery and Divorce

Being a crummy spouse doesn’t mean you’re a bad parent. Therefore, an affair is often irrelevant in a custody matter; and does not affect custody and visitation.

While an affair may be irrelevant, a new relationship may be important – only to the extent that many judges want to see parents waiting until the relationship is at least several months old before the children meet the new boyfriend / girlfriend. This is to enhance the child’s stability by not having new people brought in and out of their life.

Child Support

Another important issue that divorcing partners face, is the question of child support. After all, your children may be your life…but they are also expensive!

The law in New York State requires that both parents financially support their children. Child support is composed of 2 items: basic child support and “add on” costs.

Basic child support is a set payment (biweekly / weekly) from parent who has parenting time to the parent who has primary physical custody. This payment is most often a percentage of the paying parent’s income. In cases of equal parenting time, the parent with the greater income is the parent who would pay support to the other parent.

The “add on” costs are specified expenses that are split between the two parents – either in proportion to their income (“pro rata”) or in another agreed upon manner. The child support statute requires that the following expenses are shared: the children’s portion of any health insurance premium, the children’s uncovered medical costs, child care expenses incurred to enable a parent to work. Parents can also agree to split any other cost or expense they may agree upon.

These funds are not optional—and neither is visitation time. Late or missed payments do not give a custodial parent the right to withhold visitation, and doing so can have severe consequences. If your spouse isn’t paying child support, your attorney can help you address these issues through legitimate channels.

Lauren L. Hunt: New York Divorce Attorney

Divorce is a confusing and difficult time for children. Many feel lost and abandoned, and are unable to grasp the changing dynamics of their new reality. For parents, watching this struggle is, perhaps, the most excruciating aspect of divorce.

As a mother and a child of divorce parents, I understand your concerns and your child’s fears. I<spanconverted-space”> empathize with parents trying to cope under the burned of shifting responsibilities and an unknown future. I bring this parental perspective to my practice, and am particularly sensitive to these needs as an attorney.

If you have more questions about divorce in New York, and how it might affect your children, call the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure a bright new future for the ones you both love the most.

Prenuptial Agreements

A prenuptial agreement is a written contract, signed by two persons are planning to marry, which outlines how the parties wish to divide assets and income in the event of divorce. It is a powerful document for so many reasons – and one which often gets a bad rap.

However, in recent years, prenuptial agreements are becoming more and more common. And, for good reason, as a prenuptial agreement is signed long before any marital tensions may arise. It is signed at a time when future spouses want to be fair and reasonable with each other. So, often, prenuptial agreements result in an end to a marriage that is simple, clean, and with dramatically less animosity and fighting. Now, who doesn’t like that idea?

Prenuptial Agreements: What is Included?

A New York prenuptial agreement can address any of the following topics: spousal maintenance, property/debt division, and counsel fees upon divorce. You do not have to address all of these topics – you have tremendous flexibility to pick and choose what topics to address, and how in depth you want to get.

For example, you can choose to address only spousal maintenance and specifically state that issues of property/debt division and counsel fees will be addressed based upon the laws existing at the time of divorce.

Prenuptial Agreements: What is Excluded?

Public policy in New York prohibits the following topics from being addressed in a prenuptial agreement: child custody and child support. Therefore, these topics are always left to be decided based upon the laws and circumstances in existence at the time of divorce.

Common Terms & Styles of Agreement

Prenuptial agreements are one of the most flexible contracts available to spouses. Over the years, though, there has been a rise in certain terms or styles of prenuptial agreements. These are highlighted below. Please remember, a prenuptial agreement is a binding contract so, before signing one, you should at least have the document reviewed by an attorney.

Changing definition of marital property: in New York, marital property is any property (and debt) acquired from date of marriage until date of a signed settlement agreement, date of an action for divorce, or another agreed upon date. Therefore, marital property (in general) is based upon when you acquired it – without regard to how an asset it titled (ie: joint names or individual names). A popular option in prenuptial agreements is changing this rule so that marital property (some or all) is only created if spouses place the asset in joint names or do something else to purposefully grant the other spouse right to the asset.

Sunset provision: some couples want all or some terms of their agreement, to end upon the occurrence of certain events or a certain date. In this instance, a sunset provision can be used. This term states that the clause (or whole agreement) ends or *sunsets” when indicated.

Negotiating a Prenuptial Agreement

There are a variety of ways a couple can negotiate their agreement. Many will discuss terms between themselves and then visit individual attorneys have the document drafted. Another option is to attend mediation to discuss the terms and then have the mediator draft the agreement. Regardless of how you negotiate the agreement, the key is remembering that this is a legally binding contract; so it is incredibly important to have attorney input during the process.
If you have more questions about prenuptial agreements in New York, and how it might affect you, call the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure a bright new future you and your loved ones.

Frequently Asked Questions

What is a postnuptial agreement?

Couples who are already married can also create contracts between themselves. These are called, “postnuptial agreements,” and can be used to accomplish many of the same ends as a prenuptial agreement. Postnuptial contracts must be made in good faith, disclose all assets and property prior to signing, and will not be enforceable unless properly executed.

What are the limitations on a prenuptial agreement?

As a matter of law, prenuptial agreements cannot:

Dictate requirements for conception or family size (such as when the couple will conceive, or how many children they’ll have);
Address any terms for custody of children upon divorce or separation;
Limit future child support obligations or custody orders;
Induce one spouse or the other to engage in criminal behavior; or,
Prohibit alimony (if the absence of alimony would leave the supported spouse on public assistance, post-divorce).

Any other terms in a prenuptial agreement must be fair, reasonable, and not unconscionable; arrived at after proper disclosure and good faith negotiation. If there are terms that do not meet this standard, then they can be challenged upon divorce and a Judge has the final say as to whether those challenged clauses meet the minimum legal standard. If they do not, the agreement can be invalidated (either in whole or in part).

What are the requirements for a prenup?

In order for a prenuptial agreement to be valid, it must:

Be voluntarily signed by both parties;
Fully disclose all property, money, and other assets;
Be properly executed; and
Represent a fair and reasonable agreement.

The contract must also be executed prior to marriage. A contract signed after the wedding—even if on the same day—would be considered a postnuptial agreement. A postnuptial agreement is still a valid and binding agreement so long as it is properly executed and complies with the other elements listed above. Failure to comply with these elements could partially or completely invalidate an agreement.

What is a prenuptial agreement?

A prenuptial agreement is a pre-marriage contract outlining the duties and responsibilities of both spouses during marriage. It can also be used to keep property separate, dictate how assets will be divided upon divorce, and address terms for financial support of a spouse. These contracts are often thought of as something that only applies to persons who are very wealthy. This is not accurate. Many couples choose to sign a prenuptial agreement to customize how the laws would apply to their marriage, avoid animosity, discord, and uncertainty should the marriage in divorce.

What is a postnuptial agreement?

Couples who are already married can also create contracts between themselves. These are called, “postnuptial agreements,” and can be used to accomplish many of the same ends as a prenuptial agreement. Postnuptial contracts must be made in good faith, disclose all assets and property prior to signing, and will not be enforceable unless properly executed.

What are the limitations on a prenuptial agreement?

As a matter of law, prenuptial agreements cannot:

Dictate requirements for conception or family size (such as when the couple will conceive, or how many children they’ll have);
Address any terms for custody of children upon divorce or separation;
Limit future child support obligations or custody orders;
Induce one spouse or the other to engage in criminal behavior; or,
Prohibit alimony (if the absence of alimony would leave the supported spouse on public assistance, post-divorce).

Any other terms in a prenuptial agreement must be fair, reasonable, and not unconscionable; arrived at after proper disclosure and good faith negotiation. If there are terms that do not meet this standard, then they can be challenged upon divorce and a Judge has the final say as to whether those challenged clauses meet the minimum legal standard. If they do not, the agreement can be invalidated (either in whole or in part).

What are the requirements for a prenup?

In order for a prenuptial agreement to be valid, it must:

Be voluntarily signed by both parties;
Fully disclose all property, money, and other assets;
Be properly executed; and
Represent a fair and reasonable agreement.

The contract must also be executed prior to marriage. A contract signed after the wedding—even if on the same day—would be considered a postnuptial agreement. A postnuptial agreement is still a valid and binding agreement so long as it is properly executed and complies with the other elements listed above. Failure to comply with these elements could partially or completely invalidate an agreement.

What is a prenuptial agreement?

A prenuptial agreement is a pre-marriage contract outlining the duties and responsibilities of both spouses during marriage. It can also be used to keep property separate, dictate how assets will be divided upon divorce, and address terms for financial support of a spouse. These contracts are often thought of as something that only applies to persons who are very wealthy. This is not accurate. Many couples choose to sign a prenuptial agreement to customize how the laws would apply to their marriage, avoid animosity, discord, and uncertainty should the marriage in divorce.