A couple wants to get married, but one person has concerns about personal assets and property. In this case, the person needs to contact the bronx Prenuptial Lawyers about a prenuptial agreement. A prenuptial agreement is a contract signed by future spouses before marrying. The following information gives some details about prenuptial agreements:
Reasons to have a Prenuptial Agreement
A 2013 survey by the American Academy of Matrimonial Lawyers (AAML) reports that 63 percent of divorce attorneys saw an increase in prenuptial agreements over 3 years. Also in this survey, 46 percent of women were the initiators of the prenuptial agreement. The protection of the assets and property of both future spouses is important. A prenuptial lawyer can draft a legally binding prenuptial agreement for you. Here are some reasons to have a prenuptial agreement:
• Specifies which property is separate
• Indicates the amount of maintenance (alimony) a spouse will receive
• Identifies marital property
• Reduces conflicts during a divorce
• Assigns debt such as credit card balances to right spouse
• Provides details about special agreements between spouses
Reasons to not have a Prenuptial Agreement
Some future spouses are afraid to have a discussion about a prenuptial agreement. They are afraid that the words “prenuptial agreement” will end the relationship. This is a matter that should be open for discussion.
This is why both future spouses should seek the advice of a prenuptial lawyer. The legal professional will be able to provide valid answers to all questions. The future spouses will be able to determine if a prenuptial agreement is right for them. Here are some reasons to not have a prenuptial agreement:
• Cancelling of marriage plans because of prenuptial agreement
• Inappropriate timing right before wedding
• Unfair provisions brought up in court
• State law may cover issues
Marrying Without a Prenuptial Agreement
The Centers for Disease Control and Prevention (CDC) report that there were 2, 140, 272 marriages in 2014. The CDC also indicates that 813,862 people received a divorce in the same year. Forty-nine states plus Washington D.C. reported this information. Your state law will determine ownership of property during and after marriage. Both spouses will have a share of all property after a divorce.
A spouse can receive some or all the property if the other spouse dies. Your children may not receive any property. Also, both spouses are responsible for debt obtained during their marriage. You should contact a legal professional to determine if a prenuptial agreement is right for your situation.
Special Situations Justifying a Prenuptial Agreement
There are some special situations that justify a prenuptial agreement. Both spouses need to talk to a prenuptial lawyer. The attorney will be able to answer questions and give sound legal advice. Here is a list of special situations justifying a prenuptial agreement:
• Owns a large amount of real estate
• Owns a lot of assets other than real estate
• Earns a six figure or more yearly income
• Retirement benefits
• Stock options or profit sharing
• Owns an advanced degree
• Heir to a large estate
• Owns a business or part of a business
Things to Include in a Prenuptial Agreement
You and your future spouse agree that a prenuptial agreement is necessary for your situation. Here are some things to include in your prenuptial agreement:
• Estate planning to provide for other family members
• Separate business
• Separate retirement benefits
• Each partner responsible for own debt
• Separate savings account
• Joint bank account for paying bills and miscellaneous items
• Division of property and assets for a divorce
• Amount of maintenance (alimony) if necessary
• Distribution of property and assets after death
Things to Exclude from a Prenuptial Agreement
Every state has laws about drafting prenuptial agreements. Every prenuptial agreement must meet the requirements for the particular state. There are some things that state laws prohibit in a prenuptial agreement:
• Anything serving an illegal purpose
• Spouse waives right to maintenance (alimony)
• Divorces spouse for financial reason
• Making statements about personal matters
• Child support and child custody issues
Challenging a Prenuptial Agreement
A spouse may dispute whether a prenuptial agreement is enforceable. You may want a lawyer to examine your copy to see if it meets the requirements set forth by your state. A legal professional knows the laws about prenuptial agreements. Here are some reasons you may want to challenge the content of a prenuptial agreement:
• The hiding of assets by either spouse
• Pressured to sign prenuptial agreement a few days before marriage
• Leaving either spouse with little or no assets
• Did not have separate attorneys examine the prenuptial agreement
You and your future spouse may want a prenuptial agreement to settle any future issues. Both future spouses should talk to prenuptial agreement attorneys for information. The Bronx Prenuptial Lawyers can help you with all prenuptial agreement issues. You should write down any questions or concerns before your appointment.
Prenuptial agreements used to be considered a sign of distrust in a partner. Today, they are considered a stable and financially wise choice for many couples, as most marriages are second and even third marriages. Families are also more blended today and include step-children, adopted children, and children of relatives that are being cared for by others.
People are also waiting longer to be married which means both partners have more than likely accumulated wealth before marriage. Along with the wealth, they also bring debt. Student debt and credit card debt are the biggest personal debt couples have before marrying. A prenuptial agreement can separate you from your spouse’s debt, which is fair, and so these agreements make sense for both parties.
What Is A Prenuptial Agreement?
A prenuptial agreement or a prenup, is a legally binding contractual agreement between two consenting parties to the agreement, before their marriage. If one party does not agree to all details and stipulations, they don’t sign it. Some people refuse to be married without a prenuptial agreement and one party may feel pressured to sign the agreement when they don’t agree with it.
One would need to prove that they were coerced or forced to sign a prenup in a court of law, otherwise, the contents of the document are considered binding. There are certain things that most states do not allow in the prenuptial agreement such as Child Support or Child Custody and personal thoughts or ideas and other non-financial items.
In a divorce, most states are equitable distribution states. A couple’s assets will be split as fairly and evenly as possible by the court unless an agreement document before the divorce was drawn up or if a prenuptial agreement exists defining the terms in the event of divorce.
There can be exceptions to the equitable division rules. If a spouse is injured during the marriage and is rewarded a monetary judgment by the court, it is considered community property during the marriage, however, in the event of a divorce, the judgment is awarded solely to the spouse who was injured. A spouse may also misappropriate marital property before or during the divorce.
Each prenuptial agreement will be as unique as the two parties who created and signed the document. A prenuptial lawyer who specializes in Family Law is the person best able to explain any exceptions and legally binding rules, and any other aspect of a prenup agreement.
What Can I Expect From A Prenuptial Agreement?
The State of New York is an equitable distribution state and without a pre-existing agreement between the two parties, a judge will decide what is fair distribution. This will not always mean it will be a 50/50 division of property and assets. A judge will look at many factors involving both parties in order to determine how best to divide the assets including things like:
- Length of Marriage
- Type of Property
- Number of Children
- Age of Each Spouse
- The Health of Both Parties
- Income of Both Parties
- Future Earning Ability
A spouse who has custody of children, for example, may receive property which will benefit the children such as the family home or car or being awarded particular insurance and other policies. In most cases, only the property and assets acquired during a marriage will be considered for equitable distribution. Certain assets that may not be considered as marital property may be a property bought before a marriage or an inheritance bestowed upon a spouse before marriage.¹
Spousal maintenance is determined separately from property and asset distribution although similarly, spousal maintenance considers some of the same factors and takes into account the ability of one spouse to provide for their own living, whether it is temporary or permanent, their education, and if they have children who have a disability which requires constant care and the spouse is unable to work.
Do I Need A Prenuptial Lawyer?
If you have property and assets acquired before and after a marriage, it is always wise to consult a prenuptial lawyer so that all aspects of financial concern can be included in your prenup. Some of the other reasons to have a lawyer guide you through the prenuptial agreement process include:
- There are children from a previous marriage
- You own or are co-owner of a business
- This is a second marriage
- Your partner’s debt exceeds yours
- You earn more or less than your partner
There are restrictions and requirements involved specific to New York State Law that must be followed when drafting a prenuptial agreement. It is important to have legal counsel involved so that the language is correct, the parties understand the nature and consequence of what the agreement contains, and that the agreement is sufficient to be entered into a court of law in the unfortunate event of divorce.
¹Domestic Relations Law – DOM § 236. Special controlling provisions; prior actions or proceedings; new actions or proceedings, Find Law, http://codes.findlaw.com/ny/domestic-relations-law/dom-sect-236.html (last visited Oct 8, 2017).
Bronx Prenuptial Lawyers
Your best intent and hopes aside, your marriage might end in divorce. It can prove hard enough to think about dividing property and finances when the end looms. However, the fact that the law treats marriage as a business or financial relationship may call upon you to address these issues even before the marriage.
A prenuptial contract, which parties enter into with marriage and mind, is the vehicle to settle property and other financial issues before marriage. One of our Bronx prenuptial lawyers stand ready to guide you through deformation and any legal challenges you or the other party may have to it.
Why Do a Prenuptial Agreement?
Without any agreement, the court divides your property upon a separation or divorce. In a proceeding known as equitable distribution, the parties argue about, and the court determines, what is marital and separate property. Then, based upon numerous considerations, a judge distributes the property. Often, property division judgments call for the sale of marital property. Further, legal proceedings may include claims for alimony or other post-separation support.
In a separation agreement, the parties resolve these disputes that a judge would otherwise address. However, separation agreements are negotiated and formed after divorce appears imminent. At that point, the spouses have already accumulated property, opened and shared bank accounts and added value to assets brought into the marriage. With regard to alimony, the spouses might still argue over whether one was dependent upon the other or who was at fault in ending the marriage — two factors a court would weigh in ruling upon alimony.
A carefully prepared prenuptial agreement addresses property division, alimony and other topics — before the marriage even starts. Before you recite the vows, you and your prospective spouse disclose to one another what you own. You then declare in the agreement what will remain separate and what will be deemed marital property if you later separate.
As such, having a prenuptial agreement may prove very important if you and your spouse will live in a home that you owned before the marriage. You’ll likely want the agreement to designate your home as your separate property. A party can also remove any doubt that an expected inheritance or gift will not become marital property even if the property is received after the marriage. New York law deems inherited money in the sole name of a party to be that party’s separate property.
What Goes in a Prenuptial Agreement?
One of our Bronx prenuptial lawyers can craft a prenuptial agreement to determine the many issues that may arise upon a divorce. In addition to treatment of the house and any inheritance you may receive, you can decide upon post-separation support. Many agreements provide for waivers of the right to alimony or post-separation support. Alternatively, you can agree on an amount that will constitute alimony.
Individuals may also bring particular debts into the marriage. These are typically credit cards you and your spouse-to-be opened and had before you enter into marriage. Your premarital agreement can explain which of you will be responsible for these particular credit cards or other loans and call for debt to remain separate. If you make the debt joint, you may commit yourself to share in the responsibility for the other spouses imprudent use of credit cards. Moreover, joint debts mean that your jointly-owned property, if you decide to have the marital residence in both names, can be taken by creditors to be sold in order to collect upon the joint debts.
Child support and child custody matters normally don’t figure into prenuptial contracts. Obviously, whether you will have children and how many cannot be known until you are in the marriage. Further, courts always retain the authority to safeguard the best interest in general welfare of the children. A prenuptial agreement can provide whether the other will assume responsibility for support of minor children born prior to the marriage, especially from other parents.
How is a Prenuptial Enforceable?
Prenuptials are a matter of contract law. Nevertheless, courts tend to examine the formation of these agreements with someone more scrutiny than your traditional commercial matters.
To that end, the parties to a prenuptial must fully disclose to the other their assets. When you engage one of our Bronx prenup lawyers, you’ll have the services of someone who can detect the concealment of assets.
We do not advise that you have one lawyer represent both parties. This conflict of interest can render a prenuptial contract unenforceable. You need to be sure you have independent legal advice and representation. If the other party does not want his or her own lawyer, we will include language to the effect that the other party had the opportunity to obtain independent legal services.
Our Brox prenup lawyers can also represent you if you’re trying to invalidate a prenuptial agreement. Duress, patently unfair provisions and defects in how they were formed, such as the failure of a third-party witness to the signatures, can invalidate a prenuptial agreement. Legal representation can also help you in litigation over the interpretation or enforcement of the agreement.