When two people decide to get married, they become engaged. This is often the first “contract’ the couples enter into regarding their intent to marry. However, New York law recognizes another type of contract called a prenuptial agreement. A prenuptial agreement is a written contract between future spouses that resolves certain issues if they divorce. It only becomes valid if the prospective spouses actually marry.
Why Draft a Prenuptial Agreement?
A prenuptial agreement takes care of issues that can make a divorce messy such as division of property. Property and assets a person has prior to getting married is called separate property. This means in a divorce the other spouse doesn’t have the right to have any of the property.
Property and assets acquired after marriage are called marital property. According to New York divorce law, property acquired during the marriage can be divided by a divorce court judge and given to spouses. Property division can be messy when a judge must decide who gets what.
However, if future spouses divide property in a prenuptial agreement, separate and potential marital property is fairly separated. For example, prospective spouses may decide one spouse will receive the house, and the other spouse will receive the family care, if there’s a divorce.
A prenuptial agreement is also helpful in defining what is considered marital property. A couple may decide that a home purchased by one spouse prior to marriage will remain separate property. The agreement can also prevent commingling of property. Unfortunately, separate and marital property can become combined fairly quickly. This means that a spouse could have rights to separate property in a divorce. A prenuptial agreement along with the advice from a lawyer can help spouses keep these types of property separate.
Premarital Agreement Establishes Child Custody and Spousal Support
Besides division of property, child support and spousal support are other highly contentious divorce issues. Child custody involves the rights and responsibilities to raise children. It is separate into two types of custody: legal custody and physical custody. Legal custody gives a spouse the right to make decision about their child such as where the attend school. Physical custody gives a spouse the right to live with their child.
In a prenuptial agreement, future spouses can decide the type of child custody they want. It’s important to mention that a family court judge will have the final say on whether child custody issues. Nevertheless, a judge will often look at a prenuptial agreement to determine if the decisions made were in the best interest of the child. For example, the future spouses decide to have joint physical and legal custody. They judge may agree and grant the custody arrangement because it is in the best interest of the child.
Establishing maintenance, also called spousal support, is very important in a prenuptial agreement too. Spousal support is the amount of money paid from one spouse to the other spouse after during or after a divorce. The payments are usually monthly. Spousal payments can be temporary or permanent depending on what is agreed upon and what a judge grants. Permanent spousal support means the spouse continues to receive payments until they die or remarry.
New York Law Requires the Prenuptial Agreement be Enforceable
According to state law, all prenuptial agreements made in Brooklyn must be valid and enforceable if a couple divorces. This means the future couple must follow certain laws to make their agreement valid. One law is that each spouse must be represented by a separate attorney. This allows for each individual be legally represented by counsel and understand what they want in their agreement.
Another law is that each future spouse must disclose all their property and assets during the prenuptial agreement negotiations. Full disclosure means they tell everything. If any assets are not disclosed, the agreement is invalid.
New York law requires both future spouses enter into the prenuptial contract freely. This means one future spouse can’t be pressured into signing the agreement or agreeing to an issue they don’t like. If it is disclosed later that one spouse was under duress or coerced into making a prenuptial agreement, then it is invalid.
Getting a Prenuptial Agreement Lawyer in Brooklyn
Many people think of a prenuptial agreement as an insurance policy to prevent losing their money or property in case of a divorce. It’s not an insurance policy. Instead, it is peace of mind. Both prospective spouses have no intention to divorce. However, they understand what will happen if a divorce occurs. This allows the couple to focus on spending years together as a married couple
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