Spodek Law Group can help draft your prenup or review a prenup drafted by another attorney. Prenup agreements are very helpful, and can help create a framework for your marriage’s dissolution. Prenups can help protect your assets, and can help define what will happen in the event of a divorce. Prenup agreements can be especially helpful if one or more of you have children, one or more of you have an inheritance, or if you want to protect your family business and/or don’t want to assume each other’s present/future debts.
Our NYC prenup lawyers can help work out the terms of your prenuptial agreement. We can use meditation, collaborative discussions, in order to negotiate and/or draft your agreement. Mediation can help engage both parties in a problem solving process – where each side lists their interests, and the result is a amenable agreement. If you use meditation, both parties have to hire an attorney. In addition, our team can prepare a prenuptial agreement for your independently and review one that was prepared on behalf of your future spouse. We can also prepare a prenup agreement in NYC collaboratively with you, your future spouse, and his/her attorney.
A prenuptial agreement is a contract that you and your spouse sign before marriage. Also referred to as a prenup, this contract covers each of your property rights and what will happen should you two get a divorce.
What a Prenuptial Agreement Covers
Conventional wisdom regarding prenups is that they are intended to protect the wealthier spouse from losing their money in a divorce. Although a prenup can serve this role, that’s far from its only role.
Here are some of the things a prenup can do:
• Allow you and your partner to specify what property you would each keep in a divorce.
• Keep you from assuming the debt of your partner in a divorce.
• Stipulate where your assets would go in the event of your death.
Although state law covers what happens in a divorce, you or your partner may not want to follow state law and instead set up your own agreement. A prenup allows you both to do that.
For example, if you already have children and you’re getting married, you may want to clarify that your assets are to go to your children upon your death and not your spouse. You could do that in a prenup.
Why a Prenuptial Agreement Is a Smart Decision
Many couples decide against getting prenups because they feel like it isn’t romantic to plan for the end of a marriage, but this is a mistake that can end up costing you quite a bit down the road.
You’re obviously not planning on your marriage failing. You’re simply setting terms in case it happens. Considering about half of all marriages end in divorce, this is a good idea. No couple plans on their marriage ending, but if yours does, you’ll be happy you got a prenup.
There’s no downside to getting a prenup. If you and your spouse stay together, you’ll never need to use it. If you divorce, your prenup will help make the process go as smoothly as possible.
There are also postnuptial agreements, which function the same as prenups. The only difference is that a postnuptial agreement is created after a marriage. Although these work, it’s better to handle your agreement before getting married. If you wait until after you get married, there’s the risk that you and your spouse won’t be able to agree on the terms.
Setting up a Prenuptial Agreement
You and your spouse can set up your own prenup, but it’s better if each of you has a lawyer. If your prenup doesn’t meet the legal requirements in your state, it won’t be valid. A court could also throw out a prenup if it feels that the prenup is unbalanced.
Lawyers can go over a prenup and verify that it meets all the requirements and is fair for both parties. You and your spouse will need your own lawyers for this. It would be a conflict of interest if one lawyer represented both of you, because they wouldn’t be able to look out for each of your interests simultaneously.
With any luck, you’ll never need to break out that prenup. But it’s in the best interest of you and your future spouse to make one, and it doesn’t take long to write one up.
What can and cannot be in a prenuptial agreement?
A prenuptial agreement is a document that is drawn up to distinguish any kind of financial assets and property before the marriage and what shall become of those items after the marriage. Most people who create a prenuptial agreement agree that each person will get back their own property in the event of a divorce. Items purchased during the marriage are usually equally divided. There are some things that cannot be included in the agreement while others are commonly included in most agreements that are made.
Keep in mind that every state has different regulations as to how prenuptial agreements are handled. Most states often have their own ways to determine what kind of items can be listed in a prenuptial agreement. Most of the time, the court will distribute the property evenly as is indicated in the agreement. However, if there could be issues that are foreseen in the unfortunate event of a divorce, then the exact reading of the agreement will be followed.
The agreement protects each spouse from the other person’s debt. Even though a couple is married, it doesn’t mean that each person won’t accrue some kind of debt. It could be for a credit card that has been used or a car loan that is in the name of only one person. The prenuptial agreement will keep the other spouse from paying any of the loan or debt after a divorce. The agreement can allow for children from a previous relationship to get the property or finances that they deserve after your death. It can also be used to keep others from getting any property that you own outright. Pieces of property can include antiques, a home, a car or a business. Any kind of personal property can be delegated in the agreement in most states.
Before you get married, it’s a good idea to create a prenuptial agreement even if you don’t think you’re going to get a divorce. The agreement will help to dictate who gets which items in a divorce instead of letting the court dictate who gets the belongings in the marriage. There are states that allow you to determine if one person will pay alimony or not. A prenuptial agreement is a good idea to have if one person has a significant amount of money or property and the other person doesn’t. The agreement will ensure that the person who doesn’t have the property or money won’t be able to get it after the divorce. It will once again become the property of the owner.
Separate businesses are often included in an agreement. Most people will include retirement benefits and any insurance benefits. You can also include income and deductions as well as any claims that can be made when you file your tax return. The agreement will keep your bank accounts separate as well as any expenses that you have if you go through divorce proceedings. Anything that is illegal cannot be included as well as anything that will change the legal bindings that are already made about child custody.
How to Make a Prenuptial Agreement Legal
A prenuptial agreement is a strategic way to maintain peace of mind before entering into marriage. They are commonly used if one spouse has significantly more assets than the other and wants to protect that wealth in the event of divorce or separation. They are also typically used if one of the spouses owns a personal business and would like to keep the business assets separate from the marital property in case of divorce. Before entering into a prenuptial agreement, it is recommended that both spouses seek separate representation so that both of their interests are reflected in the final document. That is the best way to ensure that one spouse does not dominate the entire prenuptial agreement and make it too one-sided.
There are three criteria that a court will consider in determining whether a prenuptial agreement is legally enforceable.
You will need to be able to prove that both sides entered into the agreement of their own accord and without coercion.
Even if both parties did not retain an attorney, they both should have been afforded the opportunity to review the agreement with separate legal counsel.
3. Full Disclosure
Both sides must fully disclose their assets, debts and income for the agreement to be binding.
Even if all of these criteria are met, there are still circumstances in which a prenuptial agreement could be found unenforceable by a court.
1. If the agreement is unconscionable it will not stand. This means that it cannot be overly one-sided or cause undue hardship to one of the parties.
2. If both sides are represented by the same lawyer, this could cause a problem down the line because there is a conflict of interest. In this case, the entire prenuptial agreement could be tossed out as unenforceable.
3. If the prenuptial agreement tries to limit the amount of child support that one or both of the parties will have to pay, this could invalidate the agreement. The court may choose to only strike out the clause that is unenforceable and will try to enforce the rest of the provisions of the agreement.
4. If it can be shown that one of the parties did not have sufficient time to review the prenuptial agreement before signing and was forced to sign under duress, the agreement will be struck down.
5. The failure of both parties to accurately portray their financial position can render the prenuptial agreement invalid.
6. An oral contract will not suffice in order for a prenuptial agreement to have merit. The prenuptial agreement must be in writing and signed by both sides in order to hold weight. No matter what you and your spouse decide on between yourselves, if it is not reduced to writing, it is as if the agreement does not exist.
If you are considering entering into a prenuptial agreement, consult an attorney early in the process. You do not want to find out that your time and legal fees were not properly spent down the road when you try to enforce the agreement to no avail.
Are Prenuptial Agreements Public Record?
All legal documents contain sensitive material, but prenuptial agreements may be especially sensitive. These documents often contain confidential information and other details about financial arrangements between two individuals which neither party may want available to the public. For that reason, the issue of privacy is of paramount importance, but are prenuptial agreements publicly available?
Are Prenuptial Agreements Available For Public Review?
The answer to whether or not a prenuptial agreement is a matter of public record largely develops on the jurisdiction. Different states have different rules concerning the privacy of specific legal documents, including how prenuptial agreements are handled. As a document pertaining to divorce settlements, prenuptial agreements are a part of the public record in most states, however.
That said, the ultimate decision is up to the judge handling the divorce proceedings. If the judge feels ensuring privacy is necessary to protect one of the parties involved, he can have the court documents sealed. This goes for the prenuptial agreement and any other documents that can be harmful, if made available to the public.
What Makes a Prenuptial Agreement a Sensitive Document?
It may be difficult to convince a judge to seal a prenuptial agreement specifically, because of the contents usually included in this type of document. Traditional prenuptial agreements simply establish a division of property and financial responsibility in the event that the marriage fails. It establishes the division and ownership of physical property and debts, establishes terms for spousal support, and specifies the inheritance of property.
Little else is included in a typical prenuptial agreement and, as these issues are regularly made public through divorce proceedings anyway, there’s little motivation for a judge to seal the document. Of course, it depends on the judge and the facts of each specific case. Where minor children are involved in the settlement, the judge may seal court records, including the prenuptial agreement, to protect the children. Often, children resulting from a union are still under the age of 18 at the time of divorce, so the details of property settlements and the division of finances may be protected from public access by the judge. Where such records are made public, individuals might use the information to harm the children or use the children to gain access to inherited funds. Similarly, a situation that involves domestic violence and a battered spouse might necessitate a greater need for privacy.
Again, this is a determination left to the judge, but the spouse’s attorney may instigate the process by requesting that the court records be sealed. Sealing the prenuptial agreement may not be the intended goal in this case, but, if all court records in the case are sealed, that would include the prenuptial agreement as well.
In many cases, a prenuptial agreement can speed along the divorce process in the event that the marriage fails. Where these documents were once just the tools of the wealthy to protect their assets, they’re commonly used today by couples of every socioeconomic status. In addition to protecting assets, a well plotted prenuptial agreement can establish the terms of a divorce settlement in advance, speeding along the actual divorce proceedings. In some cases, a divorce suit may be unnecessary altogether, if the terms of the prenuptial agreement are thorough enough and remain uncontested by either party. Though they may be public records, prenuptial agreements do provide a valuable service.
Do courts uphold prenuptial agreements?
In short, most courts will uphold the details that are set forth in a prenuptial agreement. There are a few questions that you might have about the details of a prenuptial agreement before signing one that you need to find answers to so that you’re prepared for the outcome. An attorney can help you put together the agreement and give you details about what can be included and what cannot be included as well as how much of the agreement is upheld by the courts.
One of the things that couples sometimes include in the agreement is that one spouse doesn’t have to pay child support if there is a divorce. In most states, a court won’t uphold any details about child support or child custody in a prenuptial agreement. You would need to go to court a separate time to get these issues straightened out and to decide what amount is paid and by who. You would also make arrangements for custody in a separate court hearing.
Another issue that many couples include in their prenuptial agreements deals with alimony. Most will state that individual assets will go to the person they belong to and that no alimony is to be paid. On the other side of the spectrum, there are some couples who include alimony in the agreement, agreeing on an amount that is to be paid and the length of time that it is to be paid. These details are usually upheld by the court system. Sometimes, the court will look at the equality of the assets to determine if the alimony issue should be upheld or not. This is usually only in a few states as most will uphold the initial decision that is made by the couple before they get married so that each person gets the assets back that they own and so that any amount that is to be paid for alimony is done so by the correct person with payments received when they are supposed to be paid.
One of the agreements that usually isn’t upheld by the courts is an oral agreement. Prenuptial agreements, as well as other legal agreements between a couple, need to be written down. Most of the time, the agreement needs to be notarized and witnessed by at least two other people as well. Some people might think that a prenuptial means that there is no trust in the relationship or that one party believes that the other party will try to do something underhanded or sneaky during divorce proceedings. The agreement simply secures the assets and personal property of the people who are involved in the marriage.
Something to consider is when the prenuptial was signed. If the document was created months before the wedding, then the courts will uphold it more than they would if the agreement was signed only a short time before the wedding. If one party has a lawyer and the other doesn’t or if the same lawyer is used by both parties, then there is a greater chance that the document won’t be upheld.
How can I discuss prenuptial agreements with my future spouse?
A prenuptial agreement, called a prenup for short, is the best way for each partner to protect themselves before getting married.
Despite the fact that getting a prenup is always a smart decision, that doesn’t make talking about it any easier. The topic is a source of many fights among couples, and it’s not pleasant to feel like you’re planning for a divorce.
There’s nothing wrong with a prenup. It’s similar to a car insurance policy. You obviously don’t get the insurance policy because you’re planning to crash your car into a tree, but if you do get in an accident, you’ll be glad that you were insured. It’s a responsible decision, just like a prenup is.
Here’s how you can make the prenup conversation much easier on you and your future spouse.
Talk About a Prenup Early On
Don’t make the mistake of bringing up a prenup when you’re knee-deep in wedding planning or, even worse, days away from walking down the aisle. You two will already be stressed, there may not be enough time for lawyers to look over the agreement and if your spouse says they signed the prenup under duress, a court may not consider it valid.
Bring up a prenup as early on in the engagement as possible. You and your partner will both be more clearheaded and have plenty of time to come to an agreement you’re both happy with. And tread lightly when you first bring it up. Asking to talk about a prenup is less likely to cause a fight than to declare you’re getting one or simply present your partner with a contract to sign.
Be Ready to Explain Why
If you and your partner haven’t talked about a prenup at all before, this could take them by surprise. Understand that they will likely want to know why you want one, and you should have your reasons ready.
You may want to tell them that you’d like to maintain your financial independence, or that you feel it’s the responsible decision for both of you. Practice what you’re going to say to make it easier when the time comes.
Pick the Right Setting
There’s a time and a place for talking about a prenup, and it’s definitely not in a restaurant during a nice dinner date. It’s also not something to bring up after either of you has had a long day or after an argument.
You and your partner should be in private when you mention a prenup, and both of you should have enough free time to talk it over without getting cut short. You may want to bring it up during the early stages of your wedding planning.
A Prenup Shouldn’t Be a Major Point of Contention
Stay calm and listen to your partner if they’re upset by the talk of a prenup. Ask plenty of questions to find out what bothers them about it. Although this can be an emotional issue, it shouldn’t be a big deal. It’s simply the right decision to make.
Remember that you’re not doing anything wrong by asking for a prenup. You’re just protecting yourself. If you and your spouse both have lawyers to help during the prenup process, it should go smoothly and result in a fair contract.