A prenuptial agreement, commonly known as a “prenup”, is a contract signed before marriage between prospective spouses. The contract defines property rights for each spouse both during the marriage and in the event of separation, divorce, or death. A prenuptial agreement also spells out custody matters in case children are involved.
In order to be valid, prenuptial contracts must be in writing and
signed by both parties before a notary public. Oral prenups are not legally binding. A
prenup is in effect immediately upon marriage, provided that it's agreed to by both parties and the terms are fair and reasonable.
Who Needs a
prenup?
It isn't necessary to benefit from a prenuptial agreement. It helps many couples by establishing their respective rights and privileges. Prenups make financial matters clear and facilitate divorce proceedings should the marriage fail. For instance, a single parent of a small child might want guarantees that the child's college fund will not be affected in the event of divorce.
Whatever provisions are made, a
prenup can protect the present and future assets, and liabilities, of either party. Without the prenuptial agreement, the allocation of common property may have to be decided by a
divorce court.
What a Prenuptial Agreement Can Cover
New
York State has not adopted the UPAA, or Uniform Prenuptial Agreement Act (http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2015/10/01/the-uniform-premarital-and-marital-agreements-act-3/?slreturn=20170602164825), but enforces its own statutes regarding marital contracts. These statutes essentially follow basic contract law, or ensuring legality, capacity, due consideration, and mutual consent.
Most premarital contracts will cover some or all of the following concerns:
* Rights to property, whether owned independently or by both spouses, such as the right to buy. sell, or lease assets.
* Distribution of financial
responsibility in case of death or divorce, including outstanding debts and payment of taxes.
* The right to existing businesses or investments pertaining to each spouse.
* Rights to alimony,
child support, or insurance benefits.
* Any issues or conditions important to the couple.
* Anything required by New
York State law. For example, some states won't permit child custody concerns to be decided by a
prenup. Statutes governing prenups are covered under New York's Domestic Relations Laws (http://www.cityclerk.nyc.gov/html/marriage/domestic_relations.shtml).
In general, anything of concern can be governed by a prenuptial agreement, but it doesn't cover
criminal acts or immunity to criminal charges from the other spouse.
Versatile Instrument
Prenuptial
agreements are entirely voluntary, and there are no minimum requirements to drafting a prenuptial agreement in New York State. The
prenup can provide for a monthly alimony of thousands of dollars, or none at all. It can cover the distribution of an entire art collection or the responsibility of maintaining a single
insurance policy. The prenuptial agreement can ensure that one spouse retains occupancy of a particular residence while the other keeps the title and pays the mortgage. A
prenup may also expire at a certain date. It all depends on the unique circumstances and arrangement spelled out and agreed to by any couple.
Prenups and
Child Custody
A prenuptial agreement can set forth the parents' wishes regarding
child support and custody issues, but New York courts reserve the authority to decide whether any such terms are in the best interests of the children. No court will allow the terms of
child custody if they put needless hardships upon the children, even if both parents have accepted the conditions, such as inadequate child support or unfair visitation rights.
Challenging the Prenuptial Agreement
Witnesses are not
required for prenuptial agreements but may provide legal support if the contract is challenged. Prenups aren't necessarily fixed and permanent, even if they're mutually agreed upon. Either party can challenge a prenuptial contract at any point in the marriage or divorce proceedings. Common reasons for challenging the validity of a
prenup include:
* Fraud or deception, such as hiding or under-reporting assets.
* Duress or coercion stemming from one spouse being pressured, intimidated, extorted, or otherwise
forced to sign the agreement.
* Inequitable or unfair, such as a spouse who's made millions since the signing of the agreement refusing to increase
child support.
* The
prenup was not properly signed or filed with the courts.
* A prenuptial agreement may also be invalidated if either party didn't have the opportunity to consult an attorney.
Help In Protecting Your Future
A prenuptial agreement can seriously impact the rest of your life. It's critical to have the advice of an attorney. Signing one can be either a smart move or a serious mistake, depending on what your expectations are and how fairly and honestly the terms are spelled out. Drafting and
filing an agreement that contains all the necessary provisions in accordance with New York State law can be quite complex. It requires an experienced
divorce lawyer that fully understands the New York statutes governing prenuptial contracts.
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