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Preparation is a major part of getting ready for the future. This doesn’t mean that something bad may necessarily occur. However, if you prepare, you will be in a better position to handle things. This is why so many attorneys advise their clients who are getting married to enter into a prenuptial agreement. While most people marry with the best of intentions, the reality is that more than half of all marriages in New York State end in a divorce. This is why planning for the future is critical, as it can help you avoid expenses and protect your property in the unfortunate event that your marriage ends in divorce.
What Is a Prenuptial Agreement?
When a couple gets married, the money they start earning, the property they acquire, and the debts they incur often will be deemed part of the marital estate. In the event of a divorce, these assets and liabilities will be divided between them according to New York’s equitable distribution law. In addition, while the assets each had before the marriage may be considered separate property, there are things you can do like putting your spouse’s name on a bank account that will turn this into marital property. If you end up getting divorced, these will be included in the marital estate as well.
To avoid these issues and to cover other issues that may arise in the event of a divorce, New York State allows couples to enter into a binding contract before they get married. This is called a prenuptial agreement. As long as both parties sign the document and comply with all of the requirements, such as notarization and full and fair disclosure, the agreement will be binding in the event the couple gets divorced later on or if one spouse passes away.
What Assets Does Such an Agreement Control?
The main reason for signing a prenuptial agreement is to protect the assets you owned prior to your marriage. This is why these agreements first became popular with wealthy people and celebrities. These people wanted to guarantee that if their marriage didn’t work out, they would still control the property they owned prior to saying, “I do.”
The prenuptial agreement will designate which assets and liabilities are separate property, and which ones are part of the marriage. This is why it is crucial that you provide full and fair disclosure of all assets you own and debts that you owe. Failure to provide such information can allow your spouse to challenge the validity of the prenuptial agreement if you do get divorced.
The types of assets can vary widely. For example, you may designate a house or condo that you currently own as separate property. You can also include a professional license you have, your retirement account, or even a business that you currently own. Similarly, if you have children from a previous marriage, you can make it clear that the financial obligations for such children like child support and college tuition (considered additional child support in New York) are solely your responsibility.
The prenuptial agreement can also address how marital assets and liabilities are divided. For example, some prenuptial agreements for wealthy individuals contain a lump sum payout to the spouse in the event of a divorce. As you can see, the advantage of the prenuptial agreement is the ability to craft it to meet your needs and those of your prospective spouse.
What Other Issues Can a Prenuptial Agreement Address?
The areas covered by a prenuptial can be fairly broad. For example, it can address spousal maintenance in the event of a divorce. This is called alimony in other states and covers the amount and period that one spouse has to pay money to cover the expenses of the other following a divorce. This is usually the case where there is a significant income disparity between the spouses.
You can also address estate issues if one spouse predeceases the other. This may involve the surviving spouse agreeing to take only specific assets that would be deemed separate property from the estate of the deceased spouse. It could also include a provision that the surviving spouse waives the right of election, which would entitle him or her to a share of the deceased’s estate.
What Issues Can a Prenuptial Agreement Not Cover?
A prenuptial is not allowed to address issues of child support and custody for any minor children born after the prenuptial is signed and the marriage is completed. This is because you cannot sign away your rights to custody of children born in the future, nor can you waive child support since that is the right of the child, not the custodial parent.
If You Are Planning to Get Married, Let Us Help You Craft a Prenuptial Agreement
Having a prenuptial agreement in place can actually help you and your prospective spouse enter into a marriage for all the right reasons. The full disclosure of your assets and liabilities will help you both know exactly what you are getting into, and prepare yourselves in the event that things don’t work out. Contact The Saul Law Firm, LLP, so our team of experienced matrimonial attorneys can prepare a prenuptial agreement that fits your situation perfectly and protects your assets.