If you’re planning to get married, it’s smart to get a prenuptial agreement, popularly known as a prenup, before you say your vows. Although some couples skip this, either because they don’t feel like going to the trouble or they don’t find it very romantic, a prenup actually protects both parties in a marriage. This guide will explain exactly how prenups work in New York City, why it’s important to get one and how an attorney can help you set up yours.
How a Prenuptial Agreement Works
The simplest way to explain a prenup is that it’s a legal contract that covers what will happen if a couple gets divorced. A prenup should cover every aspect of a divorce, including:
How the couple will divide their shared marital assets
What assets belong to each spouse individually
If there will be any spousal support required after a divorce, and if there is, the amount that one spouse will be required to pay and the length of time they’ll need to pay this
For a prenup to be valid, both parties must agree to it and sign it before the marriage takes place. The same type of agreement can occur after a marriage, but it would be considered a postnuptial agreement. If the couple gets divorced, then their divorce will go by the terms they agreed to in their prenup. This can make the divorce process go much quicker and cost the couple far less.
Why Every Couple Should Have a Prenup
The most common reason people object to a prenup is because they think it sends the wrong message. Since a prenup only takes effect if a couple gets divorced, some look at it like their partner is planning to get divorced should they suggest a prenup.
That’s the wrong way to look at it. A prenup is like an insurance policy – you never want to use it, but it helps if a worst-case scenario occurs. Even with a prenup, you and your soon-to-be spouse still want the marriage to work out, but you also have been responsible enough to plan in case it doesn’t. After all, divorce is the outcome with about half of all marriages.
If you do get divorced without a prenup, it can be a stressful, time-consuming process that costs thousands of dollars. You and your spouse may disagree on how to divide assets, and if that’s the case, it will be up to the court to decide what happens. With a prenup, you and your spouse have full control of your marriage and what happens should the marriage ends.
It’s impossible to predict how a court will rule during a divorce. You could end up unhappy with a court’s ruling if you leave your divorce to chance. By setting up a prenup with your partner before the marriage, you can ensure that you’ll be satisfied with the resolution should a divorce occur.
How an Attorney Can Help You Prepare Your Prenup
You and your partner may think that you can set up your prenup without any help. Although you two can and should come to an agreement on the major points of a prenup, it’s a mistake to do it all without consulting with attorneys.
There have been cases where courts have thrown out prenups. A court may throw out a prenup for many reasons, including:
The agreement is unbalanced and strongly favors one party over the other.
The agreement may have been signed under duress (the stereotypical example here is one partner giving the other partner a prenup just hours before the wedding).
To ensure that the court honors your prenup, it’s important for both you and your spouse to have your own attorneys. This way, each of your attorneys can look over the agreement and ensure that it’s fair for their client. You two can’t share an attorney for this, because that would present a conflict of interest.
Your attorneys can also make sure that neither party is under duress when they sign the prenup and get the prenup filed properly so that it will be considered valid.
A prenup certainly isn’t the most enjoyable part of marriage preparation, but it’s a crucial step to take. Make sure you and your spouse each have a lawyer so that the work you do on a prenup doesn’t go to waste.
Many people have misconceptions about a prenuptial agreement. They believe it is an insurance policy against losing all assets in a divorce. They believe a prenuptial agreement leads to more divorces in the Bronx. These are just misconceptions. A prenuptial agreement is a contract between two individuals who plan to wed. It is the best way to make sure all issues are resolved without a lot of emotions coming into play.
What Goes into a New York City Prenuptial Agreement
Although a prenuptial agreement seeks to avoid conflict between spouses if a divorce occurs, it’s very broad. This means that every prenuptial agreement is different because every couple won’t seek to resolve the same issues like property division.
New York law provides some guidelines for couples trying to figure out what they want in a prenuptial agreement. For example, the agreement include:
1. Definition of Property: New York divorce law defines property and assets in two categories: marital property and separate property. Marital property is the items the couple acquires during the marriage such as cars, jewelry and rental property. This is the type of property that must be separated during a divorce.
Many couples may not have property together before marriage. However, the can decide who receives the property such as the family home or car if they divorce. They can can also decide who will be responsible for paying debts too.
Separate property is not divided during a divorce. Separate property involves items one of the future spouse solely owns. They acquired the property prior to marriage such as an inheritance or car collection. This means their spouse can’t request those items be sold and request they receive the proceeds.
2. Spousal Support: Spouse support involves a spouse paying their ex-spouse money after the divorce. The payments are generally given every month. The purpose of the financial support is because the ex-spouse may have given up their career for some reason such as raising children or taking care of the home. Thus, they receive support for a temporary or permanent time.
3. Child custody arrangements: Child custody will ultimately be decided by a family court judge. However, it is helpful during divorce proceedings that a couple has already decided how they want to raise their children. This means if they want joint or sole physical and/or legal custody.
A New York City family court judge will always decide child custody issues based on what’s in the best interest of the child. If the child custody details in a prenuptial agreement is in the best interest of the child, a family court judge may grant what’s in the agreement.
Ensure Proper Prenuptial Agreement is Valid
Both future spouses must sign a prenuptial agreement voluntarily. This means a future can’t pressure their partner to agree to anything in the prenuptial agreement or sign one. Another way to endure it is valid involves making a fair and reasonable agreement. This means that a future spouse can’t take everything if there’s a divorce.
A huge factor in whether a prenuptial agreement is enforceable is whether each future spouse is honest during the process. The agreement requires each party to disclose all their property and assets. This means if a person didn’t tell their significant other about a timeshare they owned in another country, they must disclose it when making the prenuptial agreement. If one or both parties are not honest and provide full disclosure, then the prenuptial agreement is invalid.
Having a lawyer during the prenuptial agreement is vital. New York law requires each future spouse have the opportunity to have a prenuptial agreement lawyer review the document. This means each spouse has the opportunity to understand what they agreed to anything that would invalidate the contract or be unfair.
Hire a Lawyer to Draft a Prenuptial Agreement
It’s important to reiterate that drafting and signing a prenuptial agreement will not lead to a divorce. A prenuptial agreement is solely to set grounds rules in case a divorce occurs. It can also be a good idea if a couple remarry and have children from a previous relationships.
Contact a prenuptial agreement lawyer in the Bronx to understanding more about drafting a prenuptial agreement and how to make sure it remains enforceable. There’s a great chance of creating a contract spouses never have to use. Contact a prenuptial agreement lawyer today.