Why a post-nuptial, pre-nuptial, separation agreement or divorce stipulation?

man-woman-heart-1-1056037-mSeparation agreements, pre-nuptial agreements, post-nuptial agreements, and stipulations of settlement may largely contain the same contents, and serve a lot of the same purposes, but vary in the timing that they are made. One purpose is invariably to define the respective rights of each marital partner in the event of a dissolution of the marital partnership. As a divorce mediator, New York City and  Long Island divorce lawyer, marital agreements are a big part of my practice.

Pre-nuptial agreements are made prior to the marriage.  Post-nuptial agreements are made after the parties are already married.  Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.  Stipulations of settlement of a divorce are made after a divorce case is filed to settle the issues necessary to be decided to get the parties divorced.

Pre-nuptial agreements can help couples enter into a marriage with the knowledge that  their rights have been defined in the unfortunate event that it doesn’t work out.  As a mediator, matrimonial and family law attorney, pre-nuptial agreements are an opportunity to work with a party or couples in love that could stay married forever.  The stress of the financial uncertainty that could result from a divorce can be removed.  Pre-nuptial agreements commonly identify how the property that the parties have already, going into the marriage, will be split up or retained as separate property, in case of divorce.  It can provide how much maintenance (alimony), if any, there will be upon a divorce.  Child custody, parenting time and child support matters become trickier to try to outline in a pre-nuptial agreement since a court always has discretion when it comes to what the custody and parenting time arrangements will be with a child.  Also, the dissolution of a marriage would in most instances qualify as a substantial change of circumstances to look at what custody and parenting time arrangements are, despite an earlier agreement, in the best interests of the children moving forward.  Still, the agreement could be used as a starting point on these issues and might prove influential if there is a dispute about the determination of the matter in the future.

Post-nuptial agreements are largely the same as a pre-nuptial agreement except for the fact that the parties are married when they are made.  Post-nuptial agreements may be used for a couple that has an entirely healthy relationship, however, one or both partners are looking for a little peace of mind on some issues such as what property will remain separate.  Many wonder if they will have enough money to support themselves if things do not work out in the marriage.  From the other perspective, the “monied” spouse, between the two, might wonder what they will need to pay for support or if they will need to pay anything.   How long maintenance will last can be included. The resolution of these questions into a binding legal agreement might be the assurance needed to help the marriage continue strong.

A practical reason to use a post-nuptial agreement could be to try to ensure that both spouses can continue to remain on the health care plan of the other spouse.  Upon a divorce an ex-spouse, in most instances, cannot remain on the insurance plan of the other but a post-nuptial agreement should not interfere with the right to on a family insurance plan.   Some insurance companies believe that a New York Sepration Agreement becomes a qualifying event to terminate a spouse from being on a family healthcare plan.  It has been my experience that this is usally an error by the insurance companies which stems from the fact that there are two ways to get legally separated in New York.  The most common legal separation method is by Separation Agreement but it can also be done by a filing a lawsuit for separation.  A Judgment of Separation can be a qualifying event to terminate a spouse from the family healthcare plan.  It is understandable why insurance companies might be confused as they are usually national or international companies that have to deal with the laws of all the states.  The reason for this discussion about healthcare is that it is a common reason to either do a Post-Nuptial Agreement or Separation Agreement instead of getting divorced is often to extend the time for health care coverage.  Something to keep in mind is that once there is a qualifying event that results in termination of health care coverage, they can elect to remain covered under COBRA, for a period of time by paying for the insurance out of pocket.  COBRA can prove to be expensive, yet it allows for the continuity of coverage until alternative arrangements can be made.

Separation Agreements and Stipulations of Settlement of divorce must contain all of the issues necessary to dissolve the marriage.  This would include child custody, child support, maintenance, equitable distribution of marital assets, definitions of separate property, and any other ancillary matters.  A separation agreement is useful for parties to gain the piece of mind that when a divorce is filed that the matter should be uncontested as the issues have already been decided upon.  Filing the divorce first then negotiating the Stipulation of Settlement of the divorce has the upside of expediting the movement towards the Judgment.  After a legal separation the couple is not yet divorced and would require the additional step of the divorce filing before an uncontested divorce package is submitted to the court.

Litigation, mediation, negotiations, and collaborative law are different processes that may be used to formulate marital agreements.  Please click around our blog and webiste for more information.  Mediation couples are welcome to schedule their in office half hour free consultation.  Individuals that want the representation of an attorney can call or schedule their free consultation.  It would be our pleasure to speak with you about your case.