What is a Prenuptial Agreement? Do I Need One?

The Fundamentals of a New York Prenup

Signing a prenup isn’t just for celebrity couples, serial spouses, and the wealthy. A well drafted New York prenuptial agreement can protect both the husband and wife, even if they are of limited means. A prenuptial agreement can not only make a divorce less acrimonious, but it can safeguard the rights of your children from a previous marriage and serve as an estate planning tool.

It’s understandable that the last thing on your mind when you are in love and contemplating marriage is a prenuptial agreement. However, all marriages end—whether by divorce or death. A good prenuptial agreement can help in both eventualities.

According to recent data, approximately 40 to 50 percent of marriages in the United States end in divorce. With this foreboding statistic in mind, it’s advantageous for even the most committed couples to consider a prenuptial agreement.

What is a Prenuptial Agreement?

A prenuptial agreement (also referred to as a prenup, antenuptial, or premarital agreement) is a contract entered into prior to marriage, civil union, or any other committed arrangement (such as a cohabitation agreement).

Every marriage is different, which is why just about every prenuptial agreement is unique as well. Generally, a prenup identifies what will be marital property and what will remain separate property, establishes each party’s financial obligations, and defines the party’s rights when the marriage ends, either in death or divorce. A prenup may also provide for the payment or waiver of spousal support or the necessity to maintain life insurance.

New York Pre-Nuptial Provisions can address:

  • The division of property (i.e. home, car, jewelry, income, benefits)
  • A clarification of financial rights
  • The payment or waiver of spousal support
  • Shielding one of the other parties from the other’s liabilities and debts
  • Addressing specific assets and concerns
  • Determining the manner in which property is passed on after death
  • Clarify financial responsibilities

Terms that cannot be included:

  • Limitations on child support
  • Limitations on child custody and visitation

Reasons for a Prenuptial Agreement:

First, by reaching an agreement before marriage, a couple can avoid litigation down the line in the event that the parties divorce. Think of a prenuptial agreement as an opportunity to protect both partner’s property and assets.

Secondly, in the absence of a prenup, New York law will determine how property gets distributed in a divorce or in the event of the death of a spouse. A prenup can alter the “default” provisions, which can protect assets and allow you to plan your estate with certainty.

For this reason, it’s best to write a contract before marriage that establishes property and financial rights in case of divorce.

How to Make a New York Prenuptial Agreement

Foremost, it’s important that both husband and wife have counsel. Each party should find an experienced and knowledgeable attorney that will draft and negotiate the agreement.

If you are contemplating marriage or if you or your fiancé wants to enter into a prenuptial agreement, contact us or call us at 212-683-9551. We will work to protect your rights.

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