Considerations With A Prenuptial Agreement

A contract made between two people who plan to get married is considered a prenuptial agreement. Each spouse will disclose in the agreement their finances and all the property they own prior to getting married. Once this is done, they will negotiate rights and responsibilities for each spouse should they decide to dissolve the marriage or one of the spouses’ dies during the marriage.

Determining Separate Property
Any property brought into a marriage by each spouse is defined as separate property. It is important during the marriage for each spouse to maintain their separate property from marital property. This is because the separate property will belong to the specific spouse during the marriage as well as if it ends. A prenuptial agreement is designed to clearly identify which property is separate property. Should a spouse mix their separate property with marital property during the marriage, it could be considered marital property despite what is listed in the prenuptial agreement.

Non-Monied Spouse
A non-monied spouse does not have significant property or financial resources. When a prenuptial agreement is being negotiated, and there is a non-monied spouse, they should have their own legal representation. If this doesn’t happen, the prenuptial agreement may not be enforceable. The best way to avoid this type of problem is for the non-monied spouse to choose their own attorney to represent them.

A prenuptial agreement should be designed to resolve any type of issues for the dissolution of marriage that would be left to a court to decide. It will determine the right to specific property for each spouse. The entitlement to benefits if a spouse died during the course of a marriage as well as a spouse’s right to manage a family business and more. It could also cover what level of control each spouse has over certain property and any other issues the couple agree to put in the prenuptial agreement.

Domestic Relations Law (DRL)
The DRL describes the legal requirements for a prenuptial agreement to be considered valid. The agreement must be executed and acknowledged as it is described in Domestic Relations Law §236(B)(3). Many legal experts believe it is beneficial to utilize the same formal process involved when creating important business contracts.

Circumstances
A couple of any financial circumstance can create a prenuptial agreement to meet their individual needs. It could be designed to cover a child’s inheritance, savings and more. Some couples want to establish care of their children, alimony and other financial obligations should the marriage end in divorce. A prenuptial agreement enables couples to have more control over their possible divorce and doesn’t leave many things to a court to decide.

Marital Assets
New York courts are known for having a broad definition of what is considered a marital asset. One of the main assets under consideration will be a house. In addition to tangible property and financial assets such as an IRA, retirement account and others, the licenses held by a CPA, physician, lawyer or others are also considered assets. Any educational degree earned during the marriage which would enhance the earning of a spouse will also be considered an asset.

Restrictions
There are certain issues and responsibilities that are not able to be included in a prenuptial agreement. Responsibilities for child custody and child support are not able to be eliminated in the agreement. If this is in the agreement, it is likely to be disregarded by a court. Instead of invalidating an entire prenuptial agreement, a court will ignore sections that are unable to be enforced.

When a couple is considering a prenuptial agreement, they should each seek separate legal counsel. An experienced attorney will know what is fair and can determine if all financial issues are covered. A lawyer can help a couple create a prenuptial agreement that will hold up in court and make certain a couple separates in the way they have chosen.