A prenuptial agreement is entered into before marriage. As its name suggests, a post-nuptial agreement is entered into after marriage. The purpose of these agreements is essentially the same: i.e., protect a spouse’s finances, assets such as property and family heirlooms, income and debts in the event that the marriage ends in divorce, separation, or even death.

Prenuptial agreements are gaining in popularity for a variety of reasons. One reason is that couples today are focusing more on their careers. By the time many marry, both partners have property and financial worth to protect. Prenuptial agreements make this easy to do as couples appreciate the financial clarity that these agreements provide. The agreement also acts mechanism to reduce conflict when a marriage ends in divorce or death. Prenuptial agreements are also very common when one partner has children from a former marriage. Such an agreement makes sure a spouse’s separate property goes to their own children.

A considerable issue faced in most divorces is deciding how to divide property and money. Many prenuptial agreements are entered into simply because couples do not want the courts to decide on asset distribution should the marriage end. A few hours of upfront planning have the potential to save headaches and tremendous financial hardships in the long run. Choosing not to make a prenuptial agreement can mean property will be divided according to the laws of the state, which may not produce a desirable outcome. Making a decision about what to do with property beforehand provides assuredness and avoids uncertainty and the possibility of disappointment. In New York State, all property is presumed to be marital and the party claiming the property as separate has the obligation to prove it is separate.

New York State’s Equitable Distribution Law
A prenuptial and post-nuptial agreement can preserve the nature of property in the event the marriage ends. In other words, separate property can remain separate, instead of being subject to the equitable distribution laws of New York. “Equitable” here refers to an idea of fairness and does not mean a 50-50 split. Courts take several factors into account when determining how assets are to be distributed including:

• Length of the marriage
• Age and health of each spouse
• Separate property and income of each spouse
• Tax and debt obligations
• Each spouse’s contribution to the marriage before the divorce
• Other financial issues that occurred before the divorce, such as losing money to gambling