New York Prenuptial Agreement

A prenuptial agreement (“prenup” for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.

In some states, a prenuptial agreement is known as an “antenuptial agreement,” or in more modern terms, a “premarital agreement.” Sometimes the word “contract” is substituted for “agreement,” as in “prenuptial contract.” An agreement made during marriage, rather than before, is known as a “postnuptial,” “postmarital,” or “marital” agreement.

DO I NEED A PRENUP?

Contrary to popular opinion, prenups are not just for the rich. While prenups are often used to protect the assets of a wealthy fiancé, couples of more modest means are increasingly turning to them for their own purposes. Here are some reasons that some people want a prenup:

PASS SEPARATE PROPERTY TO CHILDREN FROM PRIOR MARRIAGES.

A marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the kids.

CLARIFY FINANCIAL RIGHTS.

Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage.

AVOID ARGUMENTS IN CASE OF DIVORCE.

Or they may want to avoid potential arguments if they ever divorce, by specifying in advance how their property will be divided, and whether or not either spouse will receive alimony. (A few states won’t allow a spouse to give up the right to alimony, however, and, in most others, a waiver of alimony will be scrutinized heavily and won’t be enforced if the spouse who is giving up alimony didn’t have a lawyer.)

If you’re a same-sex couple, you will need to work with an attorney who specializes in the unique differences in same-sex prenuptial agreements and issues that often arise in same-sex divorce.

GET PROTECTION FROM DEBTS.

Prenups can also be used to protect spouses from each other’s debts, and they may address a multitude of other issues as well.

If you don’t make a prenuptial agreement, your state’s laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. (Property acquired during your marriage is known as either marital or community property, depending on your state.) State law may even have a say in what happens to some of the property you owned before you were married.

SPEAKING WITH YOUR SPOUSE

As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be set aside.

If you are considering a prenuptial agreement, you should speak with your fiancé first. While prenuptial agreements generally have a negative stigma, you should think of it as a way of communicating and planning out your long term financial situation. Communicating about financial matters in advance may, in fact, strengthen your relationship. It will also build trust and honesty.

After you and your spouse discuss the agreement and reach an accord about what you want the contract to say, you should draw up a list of your assets. Talk about the list before you hire an attorney. Be mindful that any licenses or degrees that you may obtain during the marriage are subject to equitable distribution if you get divorced.

THE BENEFITS OF PRENUPS

Life is often unexpected, and things don’t necessarily always go as planned – especially with love and marriage. With an attorney to draft a prenuptial agreement, you can:

• Protect your separate property
• Support your estate plan
• Define what property is marital property and separate property
• Reduce conflicts and save money if you divorce
• Clarify special agreements
• Establish procedures and ground rules for deciding future matters

CONTACT BRIAN D. PERSKIN & ASSOCIATES P.C. TODAY!

When these steps have been carried out, you should seek professional help from a lawyer. It is advisable that you and your spouse have separate lawyers, so that both of your best interests are taken into consideration. At Brian D. Perskin & Associates P.C., a lawyer can help you work through the prenuptial agreement process. We will ensure that your property is protected and see that every step is carried out in a comfortable manner for you and your future spouse; contact us today!