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Protecting Your Assets with Pre & Post Nuptial Agreements

Assets acquired during the marriage are presumed to be marital assets. One who claims to have separate property (which is immune from distribution in a divorce) has the burden of proving the source and nature of that separate property. The most common types of property, if derived from separate property sources, are considered to be separate property, even though acquired during the marriage:

  • Inheritance
  • Personal injury compensation
  • Gifts
  • Exchanges of separate property assets
  • Increases in value of separate property

When two people of unequal financial stature marry, the “monied” party may consider a prenuptial contract, or agreement, which identifies specific assets that he or she wishes to remain his (or hers) in the event of a divorce. Such contracts are legally enforceable in New York State if certain formalities and language are utilized. Improperly drawn prenuptial agreements will be deemed to be invalid by the court. The family law attorneys at Mangi & Graham, LLP have had decades of experience in drawing such documents and are well versed in the legal requirements pertaining thereto. Some classes of property which are the subject of prenuptial agreements include the following:

  • Bank accounts
  • 401Ks
  • IRA’s
  • Pensions
  • Real Estate
  • Business Interests
  • Professional Practices

The above items are only used as examples. Any property which can be distributed pursuant to a divorce may be the subject of prenuptial agreements. Limitations on the payment of maintenance (formerly called alimony) may be included, but attempts to address custody of children, as well as efforts to circumvent or limit one’s obligation to pay child support, are not permitted because such efforts are considered by the court to be against public policy. Many clients have contacted Mangi & Graham when they have failed to obtain a prenuptial agreement prior to marriage, but later determine that they should have one, and that is certainly not only possible, but rather is commonplace. Mangi & Graham have been called upon by the non-monied party whose spouse has presented them with a fully prepared postnuptial agreement. In such cases, we review the proposed agreement and recommend additions or modifications. Do not sign such postnuptial agreements without consulting with us!Some parties, who have worked through problems in their marriage and wish to reconcile after a separation, often request a postnuptial agreement as a condition of reconciliation. Where one party may have wronged the other, there will never be a better time for the party who was wronged to negotiate a better agreement with their spouse who is trying to make amends and is likely to be more generous than they ever would be in the context of a divorce proceeding. Another example of where a postnuptial agreement arises is following a party unexpectedly receiving an inheritance during the course of the marriage and not already having a prenuptial agreement. The party who did not require a prenuptial agreement prior to marriage now finds themselves in a position of wanting a postnuptial agreement to protect the unexpected windfall. In such circumstances, a postnuptial agreement is the only means of keeping the peace between the parties while still giving the party who received the inheritance peace of mind.

At Mangi and Graham, LLP, we have on many occasions been able to draft the language of such agreements to provide the protection sought by the wealthier spouse in a respectful and tactful manner so as not to leave the less monied spouse feeling slighted or otherwise offended by the introduction of the postnuptial agreement. A postnuptial agreement does not have to signal an end of a marriage but can, when drafted correctly, protect the continued health of a marriage by clearly outlining the reasonable expectations of the parties. Such an agreement, however, should prompt you to obtain competent counsel to protect your future.

To work with an experienced family law attorney in Long Island to draft a pre- or postnuptial agreement, contact the law firm of Mangi & Graham, LLP. You will receive a free consultation to learn more about our firm and what we can do for you.

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