Prenuptial & Postnuptial Agreements FAQs

Congratulations on your engagement! Let's talk about a Prenuptial agreement.

Why should you plan for the unexpected now while planning your perfect day? You should know what follows if the unexpected happens.  A Prenuptial agreement (Prenup) is a legal document created before marriage that helps you and your loved one prepare for the unwanted now so as to mitigate cost, pain and suffering later.  A Prenup can be as comprehensive or as simple as you want it to be.  Many couples are concerned about talking about money, but New York State regards your marriage as an economic partnership.  You need to consider the consequences. The goal in a mediated Prenup is to help you and your loved one talk about your finances so you can understand what the law is and make sure it aligns with both of your expectations. 

What is a Postnuptial agreement?

A Postnuptial agreement (Postnup) is similar to a Prenup, but it's created after marriage has already taken place. Postnups can be useful for couples who didn't sign a Prenup before marriage or for those whose financial situations or goals have changed significantly. They serve the same protective, de-stressing and clarifying purposes as Prenups, including avoiding unnecessary costs.

Why do I need a Prenup or Postnup?

Prenups and Postnups allow you to discuss topics relevant to both of you and provide clarity and protection. They can address property division, protect separate property or family inheritances, clarify financial responsibilities, protect business interests, outline debt allocation, and reduce conflict and legal costs if the marriage ends. There may be tax consequences to what either of you may want to do then that should be addressed now in the best interest of both of you.  In any event, in a Postnup, you should talk about your finances when you start a family.  These agreements allow you to have these conversations, better understand your finances, and make important financial decisions.

Common misconception: If we keep our finances separate, the money stays separate, right?

This is a critical misunderstanding, especially under New York State law. Many young couples believe that by maintaining separate bank accounts or keeping property in one person's name, those assets will remain theirs alone if divorce occurs. This is not how New York law works.

In New York State, marital property is broadly defined as almost any property acquired during the marriage, regardless of whose name is on it or how you've kept the accounts. This includes income earned during the marriage and assets acquired during the marriage, such as retirement accounts, investments, real estate, vehicles, and more—even if only one spouse's name appears on the title or account. New York is an equitable distribution state, meaning the court divides marital property fairly (though not necessarily equally—typically 50/50, but the court has discretion).  Your Prenup or Postnup can avoid surprises.

What should a Prenup or Postnup include?

A comprehensive Prenup or Postnup typically addresses the definition of separate property, property division in the event of divorce, spousal support/alimony arrangements, debt allocation, retirement account and pension treatment, business interest protection, and any other financial matters important to you.

Can mediation help us create a Prenup or Postnup?

Absolutely. I can help couples mediate the terms of a Prenuptial or Postnuptial agreement. Through mediation, you can discuss financial expectations, asset protection goals, and create an agreement that both of you feel comfortable with—all in a collaborative and confidential setting. Mediation is significantly less expensive than each party hiring separate attorneys to negotiate these documents. Mediation can also avoid some of the unnecessary acrimony that attorneys can inject into the relationship.  I can facilitate the discussion, help you reach agreement on the terms, and then each party would have their agreement reviewed by independent counsel before signing.

What if one party wants a Prenup and the other doesn't?

This is a common concern. While one party cannot force the other to sign a Prenup, open and confidential conversations during mediation can help couples discuss their concerns, fears, and financial goals. Often, misunderstandings about Prenups create resistance. Through mediation, couples can explore what a Prenup or Postnup can do, understand what the other party is thinking and maybe then work toward a solution that feels fair to both parties. Some couples decide a Prenup isn't necessary after the discussion; others find advantages or ways to address each other’s concerns.

Is there a time limit for creating a Prenup before marriage?

There's no legally mandated time limit, but practically speaking, it's best to begin Prenup discussions well before the wedding. I personally would not recommend entering into a Prenup within 30 days of the marriage. Your wedding should be enjoyed.  In addition, rushing to finalize a Prenup very close to the wedding date could raise legal questions about whether both of you had adequate time to consider the agreement and obtain legal counsel. Courts may scrutinize more closely agreements signed just days before the wedding. Starting the process several months before the wedding allows ample time for thoughtful discussion, making informed decisions and having legal review.