Prenuptial agreements used to be considered a sign of distrust in a partner. Today, they are considered a stable and financially wise choice for many couples, as most marriages are second and even third marriages. Families are also more blended today and include step-children, adopted children, and children of relatives that are being cared for by others.
People are also waiting longer to be married which means both partners have more than likely accumulated wealth before marriage. Along with the wealth, they also bring debt. Student debt and credit card debt are the biggest personal debt couples have before marrying. A prenuptial agreement can separate you from your spouse’s debt, which is fair, and so these agreements make sense for both parties.
A prenuptial agreement or a prenup, is a legally binding contractual agreement between two consenting parties to the agreement, before their marriage. If one party does not agree to all details and stipulations, they don’t sign it. Some people refuse to be married without a prenuptial agreement and one party may feel pressured to sign the agreement when they don’t agree with it.
One would need to prove that they were coerced or forced to sign a prenup in a court of law, otherwise, the contents of the document are considered binding. There are certain things that most states do not allow in the prenuptial agreement such as Child Support or Child Custody and personal thoughts or ideas and other non-financial items.
In a divorce, most states are equitable distribution states. A couple’s assets will be split as fairly and evenly as possible by the court unless an agreement document before the divorce was drawn up or if a prenuptial agreement exists defining the terms in the event of divorce.
There can be exceptions to the equitable division rules. If a spouse is injured during the marriage and is rewarded a monetary judgment by the court, it is considered community property during the marriage, however, in the event of a divorce, the judgment is awarded solely to the spouse who was injured. A spouse may also misappropriate marital property before or during the divorce.
Each prenuptial agreement will be as unique as the two parties who created and signed the document. A prenuptial lawyer who specializes in Family Law is the person best able to explain any exceptions and legally binding rules, and any other aspect of a prenup agreement.
The State of New York is an equitable distribution state and without a pre-existing agreement between the two parties, a judge will decide what is fair distribution. This will not always mean it will be a 50/50 division of property and assets. A judge will look at many factors involving both parties in order to determine how best to divide the assets including things like:
A spouse who has custody of children, for example, may receive property which will benefit the children such as the family home or car or being awarded particular insurance and other policies. In most cases, only the property and assets acquired during a marriage will be considered for equitable distribution. Certain assets that may not be considered as marital property may be a property bought before a marriage or an inheritance bestowed upon a spouse before marriage.¹
Spousal maintenance is determined separately from property and asset distribution although similarly, spousal maintenance considers some of the same factors and takes into account the ability of one spouse to provide for their own living, whether it is temporary or permanent, their education, and if they have children who have a disability which requires constant care and the spouse is unable to work.
If you have property and assets acquired before and after a marriage, it is always wise to consult a prenuptial lawyer so that all aspects of financial concern can be included in your prenup. Some of the other reasons to have a lawyer guide you through the prenuptial agreement process include:
There are restrictions and requirements involved specific to New York State Law that must be followed when drafting a prenuptial agreement. It is important to have legal counsel involved so that the language is correct, the parties understand the nature and consequence of what the agreement contains, and that the agreement is sufficient to be entered into a court of law in the unfortunate event of divorce.
¹Domestic Relations Law – DOM § 236. Special controlling provisions; prior actions or proceedings; new actions or proceedings, Find Law, http://codes.findlaw.com/ny/domestic-relations-law/dom-sect-236.html (last visited Oct 8, 2017).
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