Matrimonial Agreements
Nassau and Suffolk Matrimonial Agreement Lawyer
Matrimonial Agreements Attorney for Long Islanders
Matrimonial agreements are contracts between spouses or ex spouses which bind them into a financial agreement or other issues related to the marriage.
These agreements include the following:
- Prenuptial agreements
- Post nuptial agreements
- Separation agreements
- Stipulations of settlement
- Modifications to any prior agreement
Certain issues require mandatory language that cannot be waived for it to be enforceable. These include:
- Any agreement involving child support
- Any agreement involving spousal support
When other issues are settled, the language of the agreement is critical to define each person's rights. Any omission on the following issue can be viewed as a waiver
- Equitable distribution
- Pension rights as it flows from equitable distribution
- Rights to 401(k), IRA or other tax deferred accounts as they flow from equitable distribution
Putting these all together means that basic contract drafting is the starting point. From there, the mandatory language required by DRL 236 B (3) is required, as well as the mandatory language for both child support and spousal maintenance. The inclusion of this language is only the starting point to ensure it is enforceable.
From there, making sure that all aspects of equitable distribution are spelled out clearly, as equitable distribution cannot be raised after judgment without vacating the entire judgment.
Good practice in drafting an agreement involves showing the work how numbers are arrived at whenever possible. The reason is if there is a mistake in the agreement that nobody catches and the parties cannot resolve them, the work allows the court to revise the agreement if an action to reform the agreement is commenced.
Services Offered
- Drafting matrimonial agreements
- Reviewing matrimonial agreements
- Prenuptial agreements
- Postnuptial agreements
- Stipulation of settlements
- Modification of existing agreements
Why Choose the Law Office of J. Douglas Barics
At the Law Office of J. Douglas Barics we have the experience to prepare or review your spouse's proposed agreement and give you the advice you need. We have challenged and defended various agreements and know what pitfalls to avoid when preparing yours, and our decades of experience with matrimonial ancillary issues gives us the depth of knowledge to advise you on each of these issues as needed.
Do you need representation in a matrimonial agreement?
Contact us online or at (631) 864-2600.
What You Need to Know about Matrimonial Agreements
What is a matrimonial agreement?
A matrimonial agreement is an agreement that addresses the rights and responsibilities of both spouses.
What are issues are covered in a New York matrimonial agreement?
An agreement can be all encompassing or cover only select issues. The following issues are some of the more common ones covered in matrimonial agreements.
- Classification of property as marital or separate
- Division of property
- Division of debts
- Waiver of rights in a divorce action
- Disposition of assets in the event of death
- Special considerations for one spouse's interest in a closely held family corporation
- Whether any additional rights exist for living together prior to the marriage
Is a matrimonial agreement required in New York when getting a divorce?
A matrimonial agreement is not required to get divorced in New York. If there is no agreement, the court will decide all issues for the parties.
Are there different kinds of matrimonial agreements?
There are different kinds of matrimonial agreements.
- Prenuptial agreement. A prenuptial agreement is an agreement made before the marriage which decides some or all issues if the parties divorce. If the agreement is not challenged in the divorce, it can proceed as an uncontested divorce. If the agreement is challenged, the divorce is contested.
- Post Nuptial agreement. A postnuptial agreement is the same as a prenuptial agreement, except it is made after the marriage. Either party can challenge the agreement.
- Stipulation of settlement. A stipulation of settlement is a matrimonial agreement which resolves a divorce or other matrimonial action after it is filed. It cannot be signed before the case is commenced as there is no case to settle.
- Separation agreement. A separation agreement is a matrimonial agreement which decides some or all of the issues between the spouses but does not change the status of the marriage. Traditionally it was used if the parties did not have grounds, of if they had moral reasons not to dissolve the marriage. It is still a useful tool in resolving marital disputes a full settlement without dissolving the marriage can be a way to continue health insurance benefits.
- Modification to an existing agreement. As its name implies, any agreement can be modified or amended by the parties by a later agreement.
Are matrimonial agreements enforceable in New York?
Matrimonial agreements are enforceable in New York. However any agreement can be challenged. A well crafted agreement is likely to withstand a challenge to it later on.
How is a matrimonial agreement challenged after it is signed?
There are several ways to challenge a matrimonial agreement after its signed. The correct one will depend on where and what court proceedings have taken place, and using the wrong one can be fatal to the challenge. They are as follows.
- A challenge as part of the divorce action. If there is a prenuptial or postnuptial agreement, the proper way to challenge it is to raise it in the complaint or the answer with counterclaims. Failure challenge a pre or post nuptial agreement during a divorce can be deemed a waiver under the doctrine of res judicata.
- A challenge as a motion within the divorce. If a stipulation of settlement has been reached in a divorce case, but the divorce judgment has not yet been signed, a motion is the proper mechanism to challenge that agreement.
- A challenge as a plenary action. A plenary action is a new case with a new index number. If a divorce is based on a stipulation of settlement and a judgment has been issued, the proper way to challenge the agreement is to commence a new plenary action. A plenary action can seek to either have the entire agreement thrown out, or to reform it, which is fixing a mistake in it when the parties cannot agree to fix it themselves.
Can a matrimonial agreement be appealed?
A matrimonial agreement cannot be appealed since the court was not involved in deciding its terms. Since an appeal can only grant relief when the trial court makes a mistake, there is no mistake to review. However, an appeal can be taken from an order or judgment which granted or denied a challenge to a matrimonial agreement.
What are the grounds to challenge a matrimonial agreement?
The most common grounds to challenge a matrimonial agreement are the following.
- Fraud. An agreement obtained by fraud can be set aside, however the standard is high and if the fraud could have been discovered by due diligence before the agreement was signed, the chances of prevailing are reduced.
- Duress. An agreement made under duress can be set aside. The party must show something out of the ordinary and not simply a desire to settle due to the stress of the divorce itself.
- Mistake. A mistake in the agreement can result in it being set aside or reformed by the court.
- Capacity. A party who lacks the ability to enter into an agreement can have it set aside if they can prove they lacked capacity to make the agreement.
- Unconscionable Agreement . An agreement which is extremely lopsided can be set aside as unconscionable.
What are the advantages of a matrimonial agreement?
The advantage of a matrimonial agreement is that it allows the parties to resolve any financial issues on their terms. Because it is arrived at through negotiations, it allows each side to consider proposals and fine tune the agreement after careful consideration. In addition, when a court decides these issues, it must apply the law. The parties are not bound by controlling law and are free to make their own unique agreement.
What are the disadvantages of a matrimonial agreement?
- A prenuptial or post nuptial agreement implies the marriage may not work out and that if it doesn't, the parties do not trust each other.
- One of the parties may be driven more by emotions than logic and enter into an agreement that is less favorable than the law would normally provide for.
- The agreement cannot be directly reviewed by an appellate court.
Contact Our Matrimonial Agreement Lawyer Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to draft and review any type of matrimonial agreement. With over 25 years of matrimonial experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled divorce lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.