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There is a lot of planning that goes into the perfect wedding, not to mention the list of things you need to do after the wedding. Yes, the honeymoon is usually a fun post-wedding task, but there are also important duties like getting a social security card with your new last name, adding your spouse to your insurance policy, or naming your spouse as a beneficiary to your retirement account. However, one thing you may not have thought to place on your to-do list is drafting a prenuptial agreement.
With many people waiting until later in life to tie the knot, a prenuptial agreement should be considered especially if you have assets you want to protect, you have children from a prior relationship that you want to protect, or if you want to be exempt from responsibility for your spouse’s premarital debt.
What is a prenuptial agreement?
Also called a “premarital agreement,” a prenuptial agreement or “prenup” is a written contract executed by spouses before marriage. It usually lists each spouses’ premarital debt and assets in full and specifies who is entitled to or responsible for each in the event of divorce. In addition to addressing property distribution and financial concerns, prenuptial agreements can address matters related to children, death or incapacity, and a variety of other legal issues. Prenuptial agreements allow spouses to control how all of the potential issues that could come up in a protracted divorce will be decided.
What is the purpose of a prenuptial agreement?
There are several reasons spouses may elect to create and enter into a prenuptial agreement. Divorce laws vary by state, so while you may begin your marriage in a state where property is divided according to equitable distribution, the marriage could end in a state that treats everything as community property. A prenuptial agreement allows you and your spouse to predetermine how your property will be divided in the event of a divorce, regardless of what the laws in your state would otherwise provide.
If there have been prior marriages, a prenuptial agreement can be useful in protecting the new spouse from being impacted by any of the alimony or child support obligations from previous marriages. While the law typically protects the assets you had before marriage, things get muddy when those assets are commingled. The longer the marriage, the more likely for commingling which could put premarital assets at risk during a divorce. A prenuptial agreement allows spouses to ensure that regardless of any commingling throughout the marriage, premarital assets remain protected and are distributed appropriately in the event of divorce.
While prenuptial agreements are appropriate for any couple, most agreements are financially motivated. Whether you are coming into the marriage with an abundance of wealth or if you have no financial assets to your name, prenuptial agreements protect both spouses equally. For the wealthy, a prenuptial agreement assures that in the event of a divorce, financial assets will be protected. For the financially insecure, a prenuptial agreement can provide for spousal support to ensure that in the event of a divorce, no one will be thrown onto the street with nothing.
Prenuptial agreements do more than protect what you had before marriage. Future assets can also be protected, and you can even avoid future debt obligations with a well-written agreement. Whether you are concerned about protecting the assets you have before marriage or special assets like retirement or educational funds that you may accrue during the marriage, a prenuptial agreement can eliminate financial uncertainties in your marriage providing stability now, even if divorce never comes up.
What is included in a prenuptial agreement?
A variety of issues may be included in a prenuptial agreement. Property division and financial issues like debt division and spousal support are common topics.
Other topics found in prenuptial agreements include:
- Provisions to protect children from previous marriages from accidental disinheritance
- Provisions to protect children of the new marriage
- Determining custody and parenting-time arrangements
- Spousal responsibilities and how disputes will be handled
- Protections to keep family property in the family
- Additional terminology in support of other estate planning documents
- Distinctions between marital and separate property
When is a prenuptial agreement invalid in New York?
Under New York law, prenuptial agreements must be voluntary, written, and signed by both parties. Additionally, there must be full and fair disclosure of both parties’ assets at the time the prenuptial agreement is created. Invalid agreements may be null and void, or otherwise unenforceable in court. It is important to ensure your prenuptial agreement is valid now by trusting an experienced family law attorney to assist you with its creation, rather than waiting until you are in court for a divorce to find out the agreement is unenforceable.
Prenuptial agreements may be invalid if a spouse fails to disclose or makes a fraudulent representation of assets, if the agreement is signed under coercion or duress, or if the agreement is unfair or unreasonable. To avoid the issues, it is helpful for each spouse to have independent legal representation in creating the agreement, as opposed to relying on a single attorney to represent both parties’ interests.
Prenuptial agreements must be properly executed and filed. As with any contract, improper filing or errors in the contract can render the agreement invalid. It is important to review the terms of the agreement carefully before signing, to ensure the prenuptial agreement is free from misstatement or another flaw.
Is it too late to create a prenuptial agreement if I am already married?
Generally, prenuptial agreements are entered into before marriage. However, state law recognizes both prenuptial agreements and postnuptial agreements. If you did not create a prenuptial agreement before walking down the aisle but would still like the protections offered by this kind of contract, a postnuptial agreement is a tool you need. Prenuptial and postnuptial agreements serve the same purpose, differing only in when the agreement is executed.
To learn more about New York prenuptial agreements, contact one of our experienced Manhattan family law attorneys to schedule a consultation.