Marriage should be based on love, but it also has more practical implications for the well-being of the couple and their children that can benefit from careful planning. You can avoid many future problems by creating a well-drafted agreement before you wed. Needle | Cuda can help by negotiating and drafting a premarital agreement that takes due consideration of your interests.
A New York premarital or prenuptial agreement is a written, signed agreement between a couple before they get married that settles one or more issues that might arise during their marriage.
In New York, a prenuptial agreement is made before marriage and will take effect as soon as the couple marries. Prenuptial agreements must be in writing and signed by both future spouses before a notary public. The court won’t accept an oral antenuptial agreement or an unsigned agreement.
Whatever the circumstance, a prenuptial agreement can protect an individual’s separate property and simplify property division in a divorce.
A prenuptial agreement is a tried-and-true way to minimize both the financial and emotional toll of divorce. Without a prenuptial agreement or a mutually acceptable separation agreement, the state will decide which of you gets certain marital assets. In these instances, assets could end up in the hands of your spouse’s children from another marriage. If you don’t want a New York Superior and/or Family Court to have the final say-so, then filing a prenuptial agreement is a must.
There are many misconceptions regarding prenuptial agreements including: “prenups aren’t for young people,” “prenups are bad for women,” or that “prenups mean ‘I don’t love or trust you.’” To the contrary, no matter what your age or economic standing, a prenuptial agreement will allow you to retain control of your assets, liabilities, professional licenses, businesses, homes, gifts and inheritances.
It is prudent to sign a prenuptial agreement if you have assets, such as a home, stock or retirement funds, own all or part of a business, may receive an inheritance, you have children/grandchildren from a previous marriage, one of you is wealthier than the other. Prenuptial agreements also a helpful in situations where one of you will be supporting the other through college; or, if you have elderly parents; or, you have another loved one who needs to be taken care of, like a special needs child.
High net worth individuals, property or business owners, professionals, investors and persons with children from a former marriage should all make it a point to sign a prenuptial agreement before entering into a union.
The agreement may also address child custody and child support, but the judge deciding those issues may refuse to enforce those provisions if they are not deemed to be in the best interests of the child.
The agreement need not treat the spouses equally on any given issue. For instance, a spouse who owns a business might want to protect his or her control of it. In fact, each spouse might be willing to give the other advantages on some issues while getting compensating advantages on other matters they care about more.
The laws governing prenuptial agreements are complex. It’s essential to understand your rights and responsibilities under a prenup before signing one. If you’re considering a prenuptial agreement or have additional questions, you may want to contact a local New York family law attorney for advice.
If you ask us to help you negotiate or draft a premarital agreement, we will first discuss all of the potential issues with you, find out what your goals are and work with your future spouse or their attorney to develop a premarital agreement that meets your needs.
If you believe that the premarital agreement you signed is unfair to you, you might have a good faith basis to contest its validity and enforceability. Although the courts presume that the agreement is valid, we might be able to overcome that presumption by proving, among other defenses, that:
In addition, if you waived your right to alimony in the agreement but must now rely on public assistance, the courts might strike down that provision. We will determine if you have any good faith basis for challenging your premarital agreement and adroitly object to enforcement of it in court.
It is a good idea after 10 years of marriage or so, to update the agreement. You may wish to be more generous. You can also add in a “sunset clause” which makes the contract expire at a certain time (for example, after 10 years of marriage). There are a variety of healthy and worthwhile reasons to periodically update your prenuptial agreement.
As of July 24, 2011, gay marriage was legalized in New York. Because same sex divorce is a new issue, however, even in states that allow gay marriage laws many nuances of this practice area are still being ironed out. As a result, if you do not draft a prenuptial agreement, you could end up in highly disputed divorce litigation. Same sex couples, like any other couples, have assets and interests they will wish to protect in the event of a divorce. Drafting a prenuptial agreement is a prudent step that protects the financial health of both partners.
While some online sites provide you with software and documents whereby you can list your assets, debts and property rights, taking a “DIY” approach is not advised. Even though sites like LegalZoom do provide online prenuptial forms, they can leave you wide open to the consequences you are trying to avoid.
On the other hand, when you hire a prenuptial agreement attorney, he/she will interview you thoroughly to understand your objectives and draft the prenuptial agreement to serve these objectives. The approach is personalized and never cookie-cutter, but rather modified to meet the needs of each client.
If you think you are a good candidate for a prenuptial agreement do not procrastinate, raise the subject sooner rather than later. Ideally, it is best if you can talk about it before engagement so it will be a surprise and doing so can make a prenuptial agreement a less touchy subject. Explain why you want the agreement and what your concerns are. Sit down and list out your assets before you secure legal assistance.
Above all, be completely honest and disclose all of your assets. When a party tries to hide something, a judge can toss out the contract.
Needle | Cuda’s New York practice serves clients in Scarsdale, Chappaqua, Larchmont, Pound Ridge, Armonk, Rye, Bronxville, Briarcliff Manor, Bedford, Harrison, and Tarrytown.
If you need a premarital agreement or are seeking to challenge an existing one in Westchester, Duchess, Putnam County or New York City, Needle | Cuda is ready to help. To arrange a consultation, call us today at 203-557-9500 or contact us online.