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    There are many reasons couples tend to shy away from prenuptial agreements, but they can serve many legitimate purposes other than implantation of doubt and thoughts of an impending divorce. Marriage is romantic. It is an expression of love and lifelong commitment. Is it appropriate to reduce it to a written contract?

    In general, prenuptial agreements are waivers of rights; limitation on expectations made in recognition that if and when “things” go bad, people tend to behave badly. With these agreements, the parties indicate the attempt to amicably resolve now what conflict, anger, and disappointment may conflagrate into a potentially ugly legal battle in court, in the event of an eventual separation or divorce. 

    A request to enter into a prenuptial agreement is not to be interpreted as an expectation of a divorce in the future; but rather as an opportunity for two well-meaning individuals to make reasonable accommodation for each other at a time each has only positive feelings for the other. 

    Under present New York State Law, upon marriage, anything of value thereafter acquired by either party presumptively belongs to both parties in substantially equal amounts. However, if “items” of “value” are the property of either spouse prior to the marriage such items remain “with exceptions” the separate property of that party.  Thus it is essential to identify assets possessed at the time of the marriage and to understand how and by what means that property may be protected in the event of the dissolution of the marriage. Only after each party has made full and complete disclosure of all pre-marriage assets and debts can the necessity for a prenuptial agreement be determined and appropriate limitations be discussed.

    What is a Prenuptial Agreement?

    A prenuptial agreement is a contract by which parties agree to various financial/property terms in the event the marriage should terminate. The discussions pertaining to the document will cover the identification and allocation of assets and spousal maintenance in the event of the divorce. A prenuptial agreement may cover such concerns as identification of what is marital and what is separate property; what is to happen if marriage is to be terminated; and what is to occur in the event of the death of one spouse. 

    Prenuptial agreements outline the duties and responsibilities of each party in the event of a future divorce. Except in exceptional circumstances, New York State recognizes the validity of these agreements. It is also important to note that child-related issues (custody and support) are cannot be included in a prenuptial agreement.

    The basic New York requirements for a valid prenuptial agreement in the State of New York include: 

    1. The agreement must be in writing
    2. Each party must be represented by separate and independent legal counsel
    3. It must be duly executed (in the form that would entitle a deed to be recorded) and executed voluntarily.
    4. Each must have had the opportunity to make reasonable inquiries into the other’s assets and income; and each party indicates the agreement to be fair and reasonable at the time the agreement is executed
    5. The agreement must not be unconscionable; nor the result of duress; nor so one-sided that a reasonable person would not voluntarily accept its terms.
    6. The agreement must be notarized
    7. It must be signed before the marriage occurs

    Benefits of a Prenuptial Agreement

    A prenuptial agreement can benefit couples, preparing them for marriage and provide them with long term protection by:

    1. Excluding earned income and personal possessions from inclusions in marital formulations. 
    2. Protecting family business/inheritance interests
    3. Protecting assets including business ownership, pensions, and real estate interests whether in existence at the time of marriage or any time thereafter.
    4. Limiting or excluding spousal support obligations.
    5. Protecting one’s estate in the event of a party’s death during the marriage or upon the occurrence of the marital termination event.

    Who Should Get A Prenuptial Agreement?

    Despite the common misconception, prenuptial agreements are not just for the rich or famous individuals. Any couple entering into a marriage has assets they may want to protect, and a prenuptial agreement is often the best way to accomplish this. 

    In some cases, a parent may wish to protect their children’s inheritance in the event of divorce. Not infrequently a party may want to keep ownership of a home as separate property as it may have been in that party’s family for years or purchased by; that party prior to the marriage. The basic premise, however, is that prenuptial agreement can/will control the future to a degree different from what a court may impose after a trial.

    The bottom line is prenuptial agreements enable couples to control their future.

    When Is a Prenuptial Agreement A Good Idea?

    Prenuptial agreements are always a good idea. If you have any assets you want to protect, you should consider a prenuptial agreement. Anyone entering into a marriage can have separate property. Here are some common reasons why people choose to enter into a prenup:

    1. A spouse may have brought significantly higher assets, properties, monies into the marriage relationship;
    2.  Has a spouse surrendered a high paying job or career to remain at home with the children of the parties; or has a party agreed to follow the other spouse to a new geographic location and has thereby, sacrificed or diminished future career opportunities;
    3. Or a spouse’s career and earning potential is intimately intertwined in that party’s family long-time business and holdings;
    4. Either spouse has entered into the marriage with children from an earlier marriage or relationship. 

    Monetary issues often negatively impact marital relationships. Discussing each parties’ individual assets and debts in advance of the marriage can often prevent or minimize future financial disputes. In fact, in many cases, marriages that have prenuptial in place are more secure than ones that do not.

    Why Prenuptial Agreements Are Becoming More Popular 

    Prenuptial agreements are becoming more and more popular for many different reasons. One reason is that many people are getting married later in life, which means they likely have more assets (or debts) prior to entering into marriage.  Another reason is that more people are entering into a new marriage with children from prior relationships. In both of these instances, and in many other situations a prenuptial agreement allows the couple to negotiate commonly tricky situations before entering into marriage.

    Contact A Trusted Prenuptial Agreement Attorney Today!

    If you are getting married, contact Paul E. Rudder, Esq., an experienced matrimonial lawyer in New York City who handles prenuptial agreements for couples. Mr. Rudder has over 30 years of experience and a long list of client references.

    Call (212) 826-9900 to arrange a consultation to discuss a pre-nuptial agreement.

    Related Articles:

    What Is A Post-Nuptial Agreement And Why You Need One?

    When Is It Too Late For A Postnup?