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Prenuptial Agreements: Should You Get One?

Prenuptial Agreements: Should You Get One?

With more couples getting married later in life, prenuptial agreements are becoming more common. There are many reasons why people might decide they want to get a prenuptial agreement, otherwise known as a prenup. However, the agreement is generally made to ensure that each party’s interests are protected.

Our skilled attorneys at Friedman & Friedman PLLC, Attorneys at Law, are here to answer common questions engaged couples in New York might have when they are thinking about getting a prenuptial agreement.

What is a Prenup?

A prenuptial agreement is a contract between two future spouses that allows them to address any concerns or priorities they might have in the event of divorce or the death of either spouse. Typically, the prenup will help the couple make decisions regarding property division, financial support, child custody, and visitation rights.

New York law has requirements that the prenuptial agreement must meet in order to be valid. The prenuptial agreement can be enforced as long as it meets the following:

  • It is in writing and signed by both parties before a notary.

  • Includes a full disclosure of both parties' assets.

  • The terms of the agreement are not grossly unfair to either spouse.

  • Each party understands the terms of the agreement and neither spouse was coerced into signing the agreement

Who Should Get a Prenup?

People commonly think that prenups are only reserved for wealthy or famous couples, but that isn’t true. Almost any couple getting married can benefit from a prenuptial agreement since the agreement can be customized to fit their needs. Prenups are especially beneficial for people who:

  • Own real estate

  • Own more than $50,000 worth of assets excluding real estate

  • Are a co-owner or owner of a business

  • Have more than one years worth of retirement benefits

  • Earn a salary of over $100,000 per year

  • Have a substantial amount of individual debt prior to marriage

  • Want to protect any future assets they might earn during the marriage

  • Have something of value that they want to protect

Prenuptial agreements are highly recommended because they allow couples to control how their property and assets will be divided, rather than the court. Property division is often one of the most disputed issues in a divorce. New York is an equitable distribution state, meaning that the court divides property in a way that is considered fair. During a divorce, the court determines what property is considered marital property and what is considered separate property.

Marital property refers to the assets that both of the spouses received during the marriage, and separate property refers to the assets each spouse received before the marriage. Only marital property can be split during the property division process. Therefore, getting a prenuptial agreement allows couples to control how their property and assets will be divided, rather than the court.

Even if the couple lacks a significant amount of assets before they get married, a prenuptial agreement should be considered. In this kind of situation, it will help the engaged couple create a plan for any assets they might acquire while married. This includes debt. If one spouse has a lot of debt, the prenuptial agreement can protect the other spouse from acquiring any of it in the event of a divorce.

What is Covered in a Prenup?

Every prenuptial agreement will cover different things depending on either spouse’s individual concerns and priorities. Common prenups will state how the couple plans to divide their future assets and income in the event of a divorce or death, but they can also address the following:

  • Defining separate property

  • Defining marital property

  • Establishing maintenance

  • Establishing support for children of a prior marriage

  • Establishing pre-marriage debt

  • Child support and child custody/visitation

While child support and custody issues can be addressed in the prenuptial agreement, courts generally will disregard them unless the child has already been born.

The court makes child custody and support decisions that are in the child’s best interest. Since the spouse’s circumstances in the future might be completely different than were at the time the prenup was signed, courts cannot predict if the prenuptial agreement will be in the best interest of the child.

Our Attorneys Can Help

Prenuptial agreements can be a smart way to protect your assets. If you are engaged to be married, you might want to consider speaking with your future spouse about getting a prenup. A skilled attorney from Friedman & Friedman PLLC, Attorneys at Law, can help you create an agreement that protects you and your spouse.

Protect your assets with a prenuptial agreement by calling us today at (914) 873-4410.