What is a prenuptial agreement?
A prenuptial agreement can be defined as contract signed before the marriage between the future spouses and that aims at organizing the split of assets in case of separation of spouses, whether by death or through divorce.
The prenuptial agreement is organized in two sections, one that will disclose each spouses’ personal asset at the time of the contract is signed, and another one that will describe the rights and responsibilities of each spouse towards the other one during the marriage and of course how to distribute the assets acquired during the married life in case of separation.
The drafting of a prenuptial agreement, though often seen as a bad omen for the future couple, often facilitates the separation of both parties should they decide to part ways.
What is a postnuptial agreement?
A postnuptial agreement is similar to a prenuptial agreement, except that instead of signing it before the marriage, it is signed after the marriage is celebrated. Just like for the prenuptial agreement, spouses will have to disclose the entirety of their assets, whether separate property or marital property. The difficulty will arise when trying to qualify the nature an asset: separate or marital.
The fact that the postnuptial agreement provides with a different way of dividing the assets at the end of the marriage that is different from New York default matrimonial regime does not prevent it from being enforceable in case of separation of spouses.
Courts will however ascertain that the spouses did disclose the entirety of their assets at the time of the postnuptial agreement and that spouses gave a clear and informed consent to the agreement.
Enforceability of a New York Prenuptial or postnuptial agreement outside of New York
The enforceability of a prenuptial or postnuptial agreement executed in New York out of the State will vary on the statutory rules and laws of the state where the parties intend to have it enforced. To be valid, the said agreement should at least be drafted and executed pursuant to New York Rules. To be enforceable in another State, the agreement needs at least to be consistent with the public policy of the foreign state.
Enforceability in New York of a foreign prenuptial and postnuptial
The need for enforcing a foreign prenuptial or postnuptial agreement arises when spouses execute said agreements outside the state of New York but wish to file for divorce in New York.
The enforceability of such foreign prenuptial or postnuptial agreement is not automatic. New York has not adopted the Uniform Premarital Agreement Act. Prenuptial agreements and postnuptial agreements in New York are still governed by statutory law and common law. Hollinger, New York does not have a clear law on the enforceability of a foreign prenuptial agreement. According to Kipnis v. Kipnis, foreign prenuptial agreements can be enforced in New York. In this matter, the wife argued that the prenuptial agreement signed in France should be applied to her divorce in New York and the Court agreed. Yet, in another case McKoan v. McKoan, the court refused to apply a prenuptial agreement signed in Kentucky stressing on the importance of the conflict of law. Based on New York case laws, in order to determine if a foreign prenuptial agreement is to enforceable, the courts will first answer the questions as to whether or not the prenuptial agreement offends public policy. Yet, in some cases like McKoan v. McKoan, though the foreign prenuptial or postnuptial agreement is not offending the public policy, the Court may deny the enforceability of the agreement based on the conflict of law issue, preferring to apply New York Statutory rules.