Newborn baby's cute little foot

On December 22, 2021, Governor Hochul signed a Bill[i] directing “the department of financial services, in consultation with the department of health to prepare a report with recommendations on their review of covered benefits related to childbirth offered by all health insurance providers in New York state.”[ii]  The purpose of the Bill is: “[t]o uncover hidden costs related to childbirth, shine a light on disparities in rates negotiated by insurers covering the birth, and determine if Statewide standards should be adopted.”[iii]

Pursuant to the Bill, the Department of Financial Services, in cooperation with the Department of Health, is to conduct a review of the benefits related to childbirth and “must include an examination of length of stay periods, costs incurred by patients and reimbursed to providers, and additional benefits offered, or not.”[iv]

Senator Julia Salazar in addressing this Bill stated that: “People expecting a child face many unknowns, which often cause anxiety and uncertainty. One of these is the difficulty many face in ascertaining the costs they will incur for labor and delivery. This bill alleviates that concern by requiring the Department of Financial Services to study and report on the coverage actually provided by insurance companies in New York for these services.”[v]

Assemblymember Chantel Jackson in discussing the Bill stated that:  “Maternal Health has been of critical importance across the nation and here in New York State, as more needs to be done to close the gap in maternal mortality among women of color.  Race, poverty and discrimination still play a role in the maternal care and delivery options available and afforded to women of color.  This legislation will focus on creating a study that will shed a light and better understanding on the current insurance benefits and coverage related to childbirth. This legislation will help identify and address the areas where insurance coverage standards must be revised to better serve the maternal health needs of expectant mothers before, during and after delivery.”

The report and recommendations will be used to “determine if state-wide standards should be adopted in addition to taking measure of how the State already fulfills requirements set by the Federal ACA [Affordable Care Act].”[vi]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.nysenate.gov/legislation/bills/2021/s4827

[ii] Id.

[iii] Id.

[iv] Id.

[v] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vi] https://www.nysenate.gov/legislation/bills/2021/s4827

Hands holding yellow paper house on blue background, family home, homeless shelter housing and home protecting insurance, mortgage concept, foster home care

One of the many unspoken issues facing homeless women is access to feminine hygiene products.  Governor Hochul, recognizing this issue, signed legislation on December 22, 2021, amending Social Services Law by adding a new section 152-c[i], which requires that feminine hygiene products be provided at no cost to menstruating individuals in homeless shelters.  The products include, but not limited to, sanitary napkins, tampons and panty liners.”[ii]  “This bill will provide feminine hygiene products at no cost to adults and children in shelters throughout New York State.”[iii] “Menstrual products can be unaffordable for those already struggling. This bill provides these products free of charge so those living in homeless shelters do not have to resort to using unsafe alternatives that can result in serious infection.”[iv] Senator Michelle Hinchey, who sponsored Senate Bill S6572, stated: “Access to menstrual supplies is a fundamental health necessity, and yet in almost every community across our state, there are people who cannot afford period products – a dilemma that no one should ever have to face.”[v] Assemblymember Linda B. Rosenthal echoed this sentiment and stated that woman should not be forced between deciding whether to buy food or menstrual products.[vi] This legislation is a small step in ensuring that women are treated fairly.

It is important that issues specific to women are brought to light and that women are treated equally and fairly. For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] Senate Bill S6572/A.529-A.

[ii] Id. at “Summary”.

[iii] Id. at “Purpose”.

[iv]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[v] Id.

[vi] Id.

Women's History Month. Brush calligraphy style vector template design for banner, card, poster, background.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[1] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[2]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[3]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[4]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[5]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[6]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[7] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[8]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources regarding laws which address and highlight women’s issues.

Christopher E. Vatter cvatter@jaspanllp.com / Samantha M. Guido sguido@jaspanllp.com.

 

[1] Pub. L. 100-9.

[2] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[3] https://womenshistorymonth.gov/about/

[4] Id.

[5] Id.

[6] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[7] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[8] Id.

Divorce decree and wooden gavel
Divorce decree and wooden gavel

You and your spouse have a separation agreement or judgment of separation . . . now what? Well, as we previously wrote, spouses who enter into a legal separation always have the option of getting back together without having to remarry. However, spouses may also use their separation agreement or judgment of separation to seek a final and binding divorce decree.

Despite the fact that New York State is a no-fault divorce state (all you need to show is that your relationship has irretrievably broken down for a period of six (6) months or more)[1], the law also provides ways for spouses to turn their legal separation, whether it was done by way of a separation agreement or a judgment of separation, into a binding divorce decree. There are two (2) provisions of the Domestic Relations Law (“DRL”) that speak to this point.

First, in order to turn your judgment of separation into a binding divorce decree, DRL § 170(5) provides:

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(5)The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

DRL § 170(5) is applicable when parties obtain a judgment or decree of separation under New York Law, which (as noted in our previous blog) requires the parties to commence an action for separation in court.

To convert your separation agreement into a binding divorce decree, DRL § 170(6) provides:

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(6)The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. . . .

DRL § 170(6) is applicable when parties enter into a separation agreement but do not receive a judgment of separation.[2]

Both DRL §§ 170(5) and 170(6) are avenues for individuals to obtain a judgment of divorce in New York State based upon either a judgment of separation or a separation agreement. Under both provisions, parties are required to wait at least one (1) year before they may obtain a judgment of divorce.

Should you and your spouse decide to get a divorce, a few things can happen to your separation agreement. First, your separation agreement can merge into a judgment of divorce. This means that the separation agreement will no longer exist as a separate and enforceable agreement. Instead, the separation agreement will become apart of the judgment of divorce.

Second, the separation agreement can survive as a separate and enforceable contract after the judgment of divorce is signed. Thus, all the terms set forth in the separation agreement remain valid and binding on the parties. It is important to note, however, that separation agreements are subject to modification under the law. Thus, a separation agreement may be modified prior to the entry of the judgment of divorce to reflect new or additional terms for you and your spouse.

Although spouses are not required to wait the required year to obtain a divorce and can, at any time, seek counsel of their choosing and file for divorce on the no-fault divorce ground, it is always nice to know you have another option available to you. Even if you decide to file for divorce pursuant to the no-fault statutory provision, you can still submit your separation agreement as part of a divorce decree should you decide to seek a no-fault divorce.

Any person seeking advice on how to obtain a judgment of divorce after being legally separated should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

[1] DRL § 170(7).

[2] The difference between a judgment of separation and separate agreement are more fully laid out in our October 28, 2021 blog.

Bankcrupty Chapter 7 text on Document form and Gavel isolated on office desk.

Thinking about divorce you say?  You really need a fresh start–not just relationship wise but financially, too. You wonder whether you can (and should) file for Chapter 7 bankruptcy without your spouse first, as well as what that means for the primary residence you own together in New York.  The short answer is yes, you can file without your spouse but, whether you should do so before, during or after dissolution of the marriage depends on your specific financial circumstance and the laws that will apply in your jurisdiction. This blog article is only meant to provide a general overview of a few things you should know at the outset.  You should consult with legal counsel before starting either process to determine which makes the most sense for you.

As a general matter, Chapter 7 bankruptcy allows you to discharge unsecured debts.  However, in order to qualify for filing a petition under Chapter 7 of the Bankruptcy Code, you must fall below a certain income threshold (a/k/a the “means test”).  Assuming you qualify, some of your assets, such as your home, may be liquidated if you are unable to, for example, protect them using allowable state or Federal exemptions.

With respect to the primary residence you own with your anticipated ex-spouse in New York, first consider the nature of your ownership interest.  Do you own the home as joint tenants with rights of survivorship, as tenants in common, or as tenants by the entirety?  If the deed does not reflect specific language, the general rule is that if the property was purchased during the marriage and a divorce has not occurred, New York law dictates that the property is held as tenants by the entirety.

Second, keep in mind that as of the date a Chapter 7 bankruptcy case is commenced, if you (as the solo filing spouse) have an undivided interest in the real property (tenancy by the entirety, joint tenancy, or tenancy in common), the trustee may sell both the estate’s interest (a/k/a your interest) and that of the non-debtor co-owner’s interest in the property.

Third, whether or not the trustee sells the home depends on several factors, including the value of the property (not the original purchase price of the home), mortgages and other liens encumbering the property, and homestead exemptions. There are different exemptions under New York State law and Federal law. Which exemptions to take depends on your specific circumstances. As of April 1, 2021, if only one spouse files, the allowable New York State exemption is $89,975, which is higher in some counties. For example, for real property located in Nassau County and Suffolk County, the homestead exemption is $179,975.

However, if a married couple files together, the exemption doubles provided they both own the property.

Also, keep in mind that under section 363(h) of the Bankruptcy Code, a trustee may sell such interests only if:

  • partition of the property is impracticable; and
  • sale of the bankruptcy estate’s undivided interest in the property would realize significantly less for the estate than sale of the property free of the non-filing co-owner’s interest; and
  • the benefit to the bankruptcy estate of a sale of the property free of the co-owner’s interest outweighs any detriment to the co-owners.

Ultimately, filing a Chapter 7 bankruptcy petition jointly with your spouse (assuming you fall below the income requirement for Chapter 7), may allow you and your spouse to take advantage of certain homestead exemptions when you both own the marital home.  Also, if you file for bankruptcy first, the division of assets that needs to happen during the divorce process could become simplified.

Bankruptcy is a unique area of law for which individuals should get detailed legal advice and counsel. The material provided in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  You can reach Sophia Perna-Plank at spernaplank@jaspanllp.com or (516) 393-8270 or Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297.

Lawyer is telling him to calm down as the sweetheart clients are going to file for divorce at the prosecutor office.

We previously posted a blog discussing some basic concepts to think about when deciding whether you and your spouse should consider entering into a separation agreement. The purpose of this week’s blog is to provide information on how a party may be able to secure a decree of separation and how it differs from a separation agreement.

As previously provided, a separation agreement is a written agreement that allows spouses an opportunity to resolve certain marital discord while also giving spouses the opportunity to live separate and apart from each other, all while remaining legally married. As addressed in the previous blog post, entering into a separation agreement does not require court intervention.

To obtain a decree of separation, which is a final judgment entered by a court separating the parties “from bed and board, forever, or for a limited time,”[1] a spouse must commence an action in court seeking a judgment of separation against their spouse.[2] Pursuant to Domestic Relations Law (“DRL”) § 200, there are five (5) reasons you can seek a judgment of separation:

  • The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
  • The abandonment of the plaintiff by the defendant.
  • The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support under the law.
  • The commission of an act of adultery by the defendant, with certain exceptions.
  • The confinement of defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

As can be seen, a party is extremely limited in the circumstances for which they may seek a formal judgment of separation from the court. It also bears noting that a judgment of separation, just as with a divorce proceeding, can be fully contested. This means your spouse will have the full opportunity to oppose your application seeking a judgment of separation. Due to that, most people do not go this route. Instead, if spouses which to remain married but living separately, many people simply seek to enter into a separation agreement rather than proceeding with the route of securing a judgment of separation as a judgment of separation may prove to be more time consuming, costly and require court intervention.

Any person contemplating entering into a separation agreement or seeking advice on how a separation agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

[1] DRL § 200.

[2] Note that a legal separation is different than a divorce. A divorce dissolves a marriage; whereas parties who are legally separated by a judgment of separation continue to be married.

Lawyer shows New York State Law.

On October 8, 2021, Governor Hochul signed into law Assembly Bill A898B, which expands a parents’ duty to support a disabled adult child until the age of 26. Specifically, the legislation amended the Domestic Relations Law (“DRL”) by adding a new section, § 240-d and modified the Family Court Act by adding a new section, 413-b.

The newly added DRL § 240-d, entitled “Support order for certain adult dependents,” provides:

  1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worked authorized to practice under title eight of the education law, and acting within their lawful scope.
  2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.
  3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such adult dependents, as well as to enforce or modify orders or judgments.
  4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.
  5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities.

The only difference in the newly added Family Court Act § 413-b, entitled “Support orders for certain adult dependents”, is paragraph 2., which provides:

Upon petition brought by the parent or kinship caregiver of an adult child with a disability, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one of section four hundred thirteen of this part. In addition to the provisions of subdivision one of section four hundred thirteen of this part, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.

For more details on Assembly Bill A898B, visit The New York State Senate website at nysenate.gov.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Samantha M. Guido at 516-746-8000 or via email at sguido@jaspanllp.com.

 

Separation agreement form on an office table.

As Taylor Swift once said, “we are never getting back together, like, ever.” Unfortunately, this is the reality for approximately 50% of all married couples. That is because approximately 50% of all marriages end in divorce. We previously posted about the Key Components in Litigating your Divorce and detailed the framework of what the divorce process looks like. But what happens if you are not ready to move forward with the divorce process but are not happy in your marriage?

In New York, spouses can enter into what is referred to as a “separation agreement,” which is a written agreement that allows spouses an opportunity to resolve certain marital discord while also giving spouses the opportunity to live separate and apart from each other, all while remaining married. This can and is often done without court intervention, which saves time and money.

You may be asking, why do I need to enter into a separation agreement? Can’t I just move out and be considered separated from my spouse? The technical answer is yes. But from a legal standpoint, this may not be the wise choice. Let’s say you and your spouse are having difficulty in your marriage and decide to separate. Your husband moves out and establishes his own residence outside the marital home. While separated, your husband incurs a hefty credit card debt. After some time being separated, you decide to file for divorce and are shocked to learn that you may be responsible for the credit card debt your husband incurred during your period of separation. You are also shocked to learn that your husband may be entitled to the Florida vacation home you purchased with your income after he moved out. This is because this debt and the vacation home continue to be considered “marital property” under New York law subject to equitable distribution in a divorce proceeding.

These types of problems can all be avoided by entering into a separation agreement. A separation agreement can resolve issues like child support, maintenance (or spousal support), custody and parenting time, division of property, property acquired after the date of separation and the like. In terms of the hypothetical above, it can set forth terms that will prevent a spouse from being held responsible for credit card debt incurred after the date of separation or protect a vacation home purchased after the date of separation.

The beauty of a separation agreement is that although it prepares spouses in the event of a divorce, it is not a final and binding divorce decree. Meaning, if the spouses decide to get back together, they can do so. In certain instances, separation agreements become void when the spouses begin living together again and intend on reconciling. This is of course subject to the terms of the agreement you sign as some agreements may expressly provide that you can only void the separation agreement by executing another instrument expressly invalidating the prior agreement. Clearly, every separation agreement is different and depends on the desires and needs of the individual spouses.

Any person contemplating entering into a separation agreement or seeking advice on how a separation agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

Printed prenuptial agreement with two golden wedding bands

In last week’s blog, we identified and discussed basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement.  In this week’s post, we discuss another type of marital agreement: a postnuptial agreement and which agreement might be best suited to your specific circumstances.

In many instances when people are about to get married, the last thing they are thinking about is entering into a prenuptial agreement. Some individuals may not have the money at the time leading up to their wedding to invest in a legal agreement or may feel that negotiating what might happen in the event of the demise of their marriage is the farthest thing from romantic.  Fortunately for them, they can still, after getting married, enter into a contract to determine their financial future as spouses, or in the event of a divorce, ex-spouses.

What Is A Postnuptial Agreement?

As we previously stated, the New York Domestic Relations Law provides that marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). Unlike a prenuptial agreement, which is entered into before the marriage, a postnuptial agreement is entered into after the parties get married. Aside from this fact, postnuptial agreements are essentially the same as a prenuptial agreement and parties are able to contemplate the same terms in a postnuptial agreement as they can in a prenuptial agreement.

While a postnuptial agreement is entered into after marriage, it is not an agreement entered into in contemplation of a divorce or even during a divorce proceeding. Instead, parties will enter into a postnuptial agreement when they intend to remain married and simply want to resolve any future issues.

One question you may be asking is “why would I want to enter into a postnuptial agreement?” Well, there are many reasons. A postnuptial agreement, like a prenuptial agreement, allows you and your spouse to take control over the distribution and division of your assets and takes that control away from the courts in the event of a divorce or even the death of a spouse.

What Are The Basic Requirements For A Postnuptial Agreement?

Like a prenuptial agreement, a postnuptial agreement must be in writing, must be signed by the parties, and must be acknowledged before a notary public. Courts will not uphold an oral postnuptial (or prenuptial) agreement.

Another important aspect of a postnuptial agreement is full financial disclosure of assets to the other party. Basically, both spouses are required to disclose to each other all the money and assets they each currently possess (both separate property and marital property). The spouses then can make informed decisions about the terms of the agreement with respect to those assets.

Further, it is critical that both parties obtain their own independent counsel when negotiating the terms of a postnuptial (and prenuptial) agreement. It is important that each spouse can receive independent legal counsel to advise them of their individual rights under the law and to ensure that their best interests are being served by the terms of the agreement.

Which Agreement Should I Enter Into?

Having now been educated in the difference between prenuptial and postnuptial agreements, you may be wondering, which is the right decision to make for your relationship. If you are entering into a marriage with significant assets to protect and the likelihood of earning significant income during your marriage, you should enter into a prenuptial agreement. This is especially so because things get much murkier once you are married, with assets being commingled and income earned during the marriage being possibly added to separate property assets owned before the marriage.  After marriage, items that may have had a separate property component may no longer be categorized as separate property and may be subject to an equal distribution between spouses.  Understanding this, postnuptial agreements may be better suited to a situation where financial circumstances have significantly changed since the date of the marriage or in a situation where one party or the other wants to set the framework for a quick and expedient departure from the marriage without the stress of protracted multi-year litigation.

Any person contemplating entering into a postnuptial agreement or seeking advice on how a postnuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Marissa J. Pullano or Samantha Guido at 516-746-8000 or via email at mpullano@jaspanllp.com or sguido@jaspanllp.com.

Prenuptial Agreement on a table.

Most people have probably heard Kanye West’s infamous song, “Gold Digger.” Specifically, the line “Holla, ‘we want prenup! We want prenup!’” Interestingly, the lyrics of Mr. West’s hit song seem to indicate that a prenuptial agreement can protect an individual from having to pay child support (wrong).  Additionally, Mr. West’s popular song also seems to indicate that prenuptial agreements are only for the rich and famous.  When it comes to the discussion of prenuptial agreements, the reaction can be mixed.  Many people express apprehension about entering into a prenuptial agreement because they can feel like signing one is a symbol that their marriage is doomed.  However, prenuptial agreements do not only account for the possibility of divorce. They can also address what should happen in the event of an unfortunate and untimely death.  As such, in order to assist our readers, in this week’s blog post we set out to cover some basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement.

What is a Prenuptial Agreement?

Under New York Domestic Relations Law, marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). As indicated by the first three letters of the word, “pre,” a prenuptial agreement (also referred to as an antenuptial agreement) is a marital agreement that is entered into before the parties to the agreement get married. A prenuptial agreement is entered into in contemplation of the marriage and becomes effective when the parties in fact get married. The agreement must be in writing and must be signed by both parties in front of a notary public. Further, the terms of a prenuptial agreement must be fair and reasonable at the time the agreement is entered into and not unconscionable at the time of the divorce to be enforced by a court.

Contrary to popular belief, a prenuptial agreement is not only for the rich and famous. Instead, anyone contemplating marriage can enter into a prenuptial agreement and tailor said agreement to their own specific needs.

What Can Be Contemplated In A Prenuptial Agreement?

Again, while a prenuptial agreement can be tailored to each couples’ own needs (subject to state law and public policy), there are some general terms many couples contemplate when deciding to enter into a prenuptial agreement. This blog will discuss just a few of those.

First, parties can waive maintenance or spousal support in a prenuptial agreement.  There is one caveat to this general proposition, however. Pursuant to New York General Obligations Law § 5-311, a spouse can contract to relieve the other of a requirement of support except to the extent that the spouse may become a public charge. For example, the parties enter into a prenuptial agreement and agree to waive maintenance. At the time of execution of the agreement, both parties are working and have a stable income. During the marriage, the wife stops working and becomes a stay at home mother, bringing in no income whatsoever during a lengthy marriage. At the time of the divorce, the wife has no job, is left with no assets pursuant to the terms of the prenuptial agreement, is at risk of being a public charge and will need to rely on government assistance to support herself. A court will likely find that the provision waiving maintenance is void and will not uphold the waiver because enforcing such provision would be unconscionable.

Second, parties can also waive their rights in estates in a prenuptial agreement. In fact, waiver of estates rights is one of the most significant motivators behind entering into a prenuptial agreement. Simply put, prenuptial agreements do not only account for what happens in the event of divorce. They can be an effective way of planning for an unfortunate and untimely death.  For example, if both or even just one party was previously married and has children from a previous marriage, they may want to seek to protect the children’s inheritance rights in an agreement.

Third, a prenuptial agreement can contain a provision waiving pension or retirement rights. However, this may be tricky as some retirement accounts only permit a spouse to waive their rights, not future spouses. On the other hand, the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Retirement Equity Act of 1984 (REA), does not prohibit a waiver of any interest in a pension by an otherwise valid prenuptial agreement. Instead, a prenuptial agreement cannot constitute a waiver of survivor benefits. Whether parties can waive their rights to a pension or retirement account in a prenuptial agreement should be determined on a case to case basis and should be explored with counsel of the parties own choosing.

Finally, a prenuptial agreement can establish pre-marital debt and separate property. For example, if a party comes into the marriage with substantial student loan debt, the parties can agree in a prenuptial agreement that the debt remains with that spouse and does not become a marital loan. Similarly, a prenuptial agreement can define and can specifically identify which property is separate property for each spouse. In other words, a prenuptial agreement can identify which property will not be subject to distribution upon a future divorce. As safe practice however, you should always keep your separate property separate and apart from all marital property (property obtained during the marriage) to ensure it retains is separate nature.

What Cannot Be Contemplated In A Prenuptial Agreement?

Contrary to what Kanye West’s song may suggest, there are certain things, like child support, that cannot be contemplated in a prenuptial agreement. Courts have found that it is against public policy for parties to waive child support in a prenuptial agreement for future children of the marriage. Similarly, a prenuptial agreement cannot address issues of custody for unborn children either. These issues must be addressed based on the circumstances at the time of the separation or divorce action.

The above is a mere glance at the intricacies of a prenuptial agreement. Any person contemplating entering into a prenuptial agreement or seeking advice on how a prenuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event that you need legal assistance, please contact Marissa Pullano or Samantha M. Guido at 516-746-8000 or at mpullano@jaspanllp.com and sguido@jaspanllp.com.