A prenuptial agreement is a legal and financial contract that both spouses-to-be create with an attorney’s help. If you and your prospective spouse wish to create a prenuptial agreement in or near the greater Rochester area, you’ll need the advice and services of a Rochester family law attorney.
Do most couples who are planning to marry really need a prenuptial agreement? What should a prenuptial agreement include? Keep reading to learn what prenuptial agreements in New York can provide and how a prenuptial agreement can protect both you and your prospective spouse.
Everyone knows that many marriages do not last for life, even when the partners enter the marriage with the best intentions. A prenuptial agreement is a contract between two future spouses that settles spousal maintenance or alimony and property division matters in advance in the event of a divorce.
What Does a Prenuptial Agreement Provide?
You should not feel awkward about discussing a “prenup” with your prospective spouse. We can’t know the future, so having a prenuptial agreement is simply a smart step to take in an uncertain world. A fair agreement with the consent of each partner offers protection to both.
A couple needs to understand a prenuptial agreement fully before signing, because a prenup will have long-term implications for your marriage. Each partner can and should have his or her own Rochester prenuptial agreement attorney independently review the agreement before signing.
In New York, a prenuptial agreement goes into effect the moment a couple is married. The document must be in writing, signed by each prospective spouse, and acknowledged before a notary. The courts in New York will not consider an oral agreement or a document that is not properly signed and notarized.
In some circumstances, some spouses-to-be may want to keep particular premarital assets separate. A prenuptial agreement may be customized to fit a couple’s unique needs, protect each partner’s assets, and simplify the division of property and assets in the event of a divorce.
What If You Don’t Have a Prenup?
In a New York divorce, if you do not have a prenuptial agreement, the court may decide how your property, assets, and debts will be divided. A prenuptial agreement allows a couple to keep control of individual property and to choose how their own assets and debts will be divided.
Prospective spouses must be honest when disclosing any information about their incomes, assets, and debts in a prenup, because any dishonesty or fraud regarding either partner’s financial situation could invalidate a prenuptial agreement.
Couples who are planning to marry have a great deal of discretion to create their own prenuptial agreement, provided that the agreement is compliant with the law. A prenuptial agreement, for example, can’t prevent someone from bringing or testifying about a domestic violence allegation.
How Can a Prenup Protect You?
Obviously, not every prospective spouse brings assets to a marriage. Some bring debts, especially student loan debts, which now total over $1 trillion in the U.S. Prenuptial agreements can protect a newlywed from a spouse’s student loan debt, credit card debt, and medical debts.
A prenup may also indicate how much spousal maintenance or alimony either spouse will receive after a divorce. The duration and amount of spousal maintenance payments may be written into the agreement. Additionally, a prenup may spell out the benefits that a spouse may acquire through a life insurance policy.
And unlike other states, a prenuptial agreement in New York is also allowed to address some of the issues that involve a couple’s children, although if a divorce takes place, a judge will retain the discretion to decide if the agreement serves the children’s best long-term interests.
What Can Prenuptial Agreements Cover?
Entirely apart from its romantic and spiritual aspects, a marriage is an economic partnership, so a prenuptial agreement deals primarily with the marriage’s economic side. To summarize, most prenuptial agreements in New York are created to cover at least one of the following matters:
- each partner’s right to property (owned as a couple or individually)
- the distribution of debts, property, and assets in the event of divorce
- each partner’s right to buy, sell, lease, or transfer property
- each partner’s rights in a family business
- each partner’s right to spousal maintenance or alimony, and the amount and duration of that spousal maintenance
- each partner’s right to benefits from the other partner’s life insurance policy
When It Counts, Will Your Prenuptial Agreement Be Enforceable?
In New York, the basic rules regarding contracts also cover prenuptial agreements. Generally speaking, the court in a divorce proceeding will presume that a couple’s prenuptial agreement is legally valid unless one spouse can provide evidence that:
- One partner signed the document under duress.
- One partner was still a minor (under 18) or was not mentally competent.
- One partner defrauded the other with the prenuptial agreement.
- The terms of the agreement were unconscionable (exceedingly unfair or illegal).
- The agreement was not put in writing or was not signed by both partners.
How Will a Family Law Attorney Help?
A New York family law attorney can help you create the prenuptial agreement that is best for you, your prospective spouse, and each of your long-term interests. If you’re already married, an attorney can help you write a postnuptial agreement that achieves the same purposes as a prenup.
Finally, when you and your spouse or prospective spouse choose to create a prenuptial or postnuptial agreement, you need to avoid the blank, downloadable or preprinted agreement forms that are so widely available.
Instead, ask a family law attorney to write up a singular and unique prenuptial or postnuptial agreement that’s best for you, your partner, and your particular needs. In the event of divorce, such an agreement can save a divorcing couple anguish, arguments, and thousands of dollars.
Is a Prenup Right for You?
A good prenuptial agreement can even be a positive influence on a healthy marriage. Yet fewer than ten percent of those who plan to marry in the U.S. obtain prenuptial agreements. Is a prenup right for you and your spouse-to-be?
Probably, but the best step that the two of you can take is scheduling a legal consultation and discussing prenuptial agreements – before you tie the knot – with a Rochester family law attorney.