Your best intent and hopes aside, your marriage might end in divorce. It can prove hard enough to think about dividing property and finances when the end looms. However, the fact that the law treats marriage as a business or financial relationship may call upon you to address these issues even before the marriage.
A prenuptial contract, which parties enter into with marriage and mind, is the vehicle to settle property and other financial issues before marriage. One of our Bronx prenuptial lawyers stand ready to guide you through deformation and any legal challenges you or the other party may have to it.
Without any agreement, the court divides your property upon a separation or divorce. In a proceeding known as equitable distribution, the parties argue about, and the court determines, what is marital and separate property. Then, based upon numerous considerations, a judge distributes the property. Often, property division judgments call for the sale of marital property. Further, legal proceedings may include claims for alimony or other post-separation support.
In a separation agreement, the parties resolve these disputes that a judge would otherwise address. However, separation agreements are negotiated and formed after divorce appears imminent. At that point, the spouses have already accumulated property, opened and shared bank accounts and added value to assets brought into the marriage. With regard to alimony, the spouses might still argue over whether one was dependent upon the other or who was at fault in ending the marriage — two factors a court would weigh in ruling upon alimony.
A carefully prepared prenuptial agreement addresses property division, alimony and other topics — before the marriage even starts. Before you recite the vows, you and your prospective spouse disclose to one another what you own. You then declare in the agreement what will remain separate and what will be deemed marital property if you later separate.
As such, having a prenuptial agreement may prove very important if you and your spouse will live in a home that you owned before the marriage. You’ll likely want the agreement to designate your home as your separate property. A party can also remove any doubt that an expected inheritance or gift will not become marital property even if the property is received after the marriage. New York law deems inherited money in the sole name of a party to be that party’s separate property.
One of our Bronx prenuptial lawyers can craft a prenuptial agreement to determine the many issues that may arise upon a divorce. In addition to treatment of the house and any inheritance you may receive, you can decide upon post-separation support. Many agreements provide for waivers of the right to alimony or post-separation support. Alternatively, you can agree on an amount that will constitute alimony.
Individuals may also bring particular debts into the marriage. These are typically credit cards you and your spouse-to-be opened and had before you enter into marriage. Your premarital agreement can explain which of you will be responsible for these particular credit cards or other loans and call for debt to remain separate. If you make the debt joint, you may commit yourself to share in the responsibility for the other spouses imprudent use of credit cards. Moreover, joint debts mean that your jointly-owned property, if you decide to have the marital residence in both names, can be taken by creditors to be sold in order to collect upon the joint debts.
Child support and child custody matters normally don’t figure into prenuptial contracts. Obviously, whether you will have children and how many cannot be known until you are in the marriage. Further, courts always retain the authority to safeguard the best interest in general welfare of the children. A prenuptial agreement can provide whether the other will assume responsibility for support of minor children born prior to the marriage, especially from other parents.
Prenuptials are a matter of contract law. Nevertheless, courts tend to examine the formation of these agreements with someone more scrutiny than your traditional commercial matters.
To that end, the parties to a prenuptial must fully disclose to the other their assets. When you engage one of our Bronx prenup lawyers, you’ll have the services of someone who can detect the concealment of assets.
We do not advise that you have one lawyer represent both parties. This conflict of interest can render a prenuptial contract unenforceable. You need to be sure you have independent legal advice and representation. If the other party does not want his or her own lawyer, we will include language to the effect that the other party had the opportunity to obtain independent legal services.
Our Brox prenup lawyers can also represent you if you’re trying to invalidate a prenuptial agreement. Duress, patently unfair provisions and defects in how they were formed, such as the failure of a third-party witness to the signatures, can invalidate a prenuptial agreement. Legal representation can also help you in litigation over the interpretation or enforcement of the agreement.
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