Pre-Nuptial agreements serve as a contract between two people entering into a marriage. The document is legally binding and ensures both spouses understand the assets each brings to the marriage and how those assets will be divided should the marriage not last. Pre-Nuptial agreements also explain the rights and obligations each spouse has during the marriage.

Valid Pre-Nuptial agreements in New York can override the standard laws regarding distribution of assets in a divorce. They permit parties to chart their own course in a way that they feel meets their needs and circumstances. These choices will generally be enforced and upheld in a future divorce so long as the Pre-Nuptial agreement is valid and protects both spouses, was entered into with full and fair disclosure of the parties’ assets, and was executed properly. Fairness under the circumstances is a key consideration and factor in the enforcement of the Pre-Nuptial agreement.

What are the Most Common Issues Addressed by a Prenuptial Agreement?

  • Separate property: Pre-Nuptial agreements should specify which property is separate; the spouse who owns the separate property should ensure the property remains separate. Separate property could still be deemed marital property and distributed equitably during the divorce, even with a Pre-Nuptial agreement. For instance, if you own a home prior to marriage and choose to add your spouse’s name to the title of the home, it could then be deemed marital property. Changing title to a separate property asset could affect its legal character and could make it subject to distribution in a divorce.
  • Marital property: It’s possible to list certain items as marital property in a Pre-Nuptial agreement, even if it would otherwise be considered separate property.
  • Maintenance: A Pre-Nuptial agreement can be used to establish maintenance payments during the marriage or in the even the marriage ends.
  • Child support: Pre-Nuptial agreements can be used to establish and protect one spouse’s child support or inheritance, and to ensure a new spouse does not take ownership of anything intended for a child born prior to the marriage. Pre-Nuptial agreements are not sufficient for addressing support and custody issues for unborn children, and the court system is legally required to determine if custody and support arrangements are in the best interest of a child at the time of divorce.
  • Debt: A Pre-Nuptial agreement allows each spouse to create an agreement concerning debt one spouse brings to the marriage.

Pre-Nuptial agreements can be a valuable tool for protecting the interests of both spouses entering into a marriage. They can be used to protect business interests, family interests and inheritance rights of the parties and their dependents. Pre-Nuptial agreements can be especially useful in Second Marriages or Same-Sex Marriages. A properly prepared and executed Pre-Nuptial agreement can also save a divorcing/separating couple thousands of dollars in legal fees because of the manner in which the agreement resolves disputes and the issues typically raised in a divorce. Data shows Pre-Nuptial agreements have been on the rise in the last decade. Experts believe that’s due in part to the children of Baby Boomers – a generation that saw a spike in divorce rates – marrying and starting families. Asking a future spouse to sign a Pre-Nuptial agreement in this day and age might not be perceived as offensive as it once was.

They aren’t right for everyone, though. Some see Pre-Nuptial agreements as an acknowledgement that a marriage is not going to last, even before the couple marries. Pre-Nuptial agreements might also need to be changed or updated as life circumstances change. Finally, it’s important to realize that Pre-Nuptial agreements can be called into question and they could ultimately be subject to a judge’s opinion to determine their validity.

One way to reduce the risk of a Pre-Nuptial agreement being questioned is to work with an experienced attorney when drafting the document. If you have questions about Pre-Nuptial agreements or you need assistance creating one for your marriage, contact the Law Offices of Elan Wurtzel by calling 516.822.7866.

Source: ABA Journal U.S. Lawyers See Rise In Requests For Asset Protection