Pre-Nuptial Agreements in NY
Do I need a Pre-Nuptial (Pre-Nup) Agreement?
Are you getting married and bringing money and/or property into the marriage?
Are you getting married and you are employed in a family business?
Are you getting married and you have children from a prior marriage/relationship that you wish to protect financially?
If you answered yes to any of the foregoing questions, then most likely you could benefit from a pre-nuptial agreement before “taking the plunge.”
What is a pre-nuptial agreement? A pre-nuptial agreement is a contract entered into between two people in contemplation of their upcoming marriage. This contract controls the distribution of assets between the parties in the event of a divorce and/or in the event of the death of a party. It can also address issues of spousal support and debt distribution. It can define what property will become marital and what property will remain separate after marriage.
What cannot be controlled in a pre-nuptial agreement? Custody and child support issues cannot be controlled with a pre-nuptial agreement as it is against public policy to do so.
Must I disclose my assets in advance of signing a pre-nup? Yes, for a pre-nup to be enforceable each party must disclose their assets and asset schedules are habitually made a part of any pre-nuptial agreement.
Is there anything I can do to protect my assets upon divorce without a pre-nuptial?
Yes, but to a limited extent. For example, if you bring an asset into a marriage, and do not transmute it (by adding your spouse to the title) or co-mingle it (by adding marital money to it) then the asset may retain its separate property status, with some exceptions. Most people don’t realize that when a couple gets married, their salaries become marital so it is difficult not to co-mingle marital with separate property. Retirement assets that accumulate during a marriage cannot be protected without a pre-nup. And if you own a business prior to marriage, and continue to work in that business during the marriage, your spouse may accumulate an interest in the business during the course of the marriage.
Do we both need representation in the negotiation and execution of a pre-nuptial agreement?
It is strongly recommended that you both have representation to avoid any claims of duress, unfairness or force. In New York State one attorney cannot represent both parties.
When should a pre-nuptial agreement be executed?
Preferably several months in advance of your marriage ceremony. This will avoid claims down the line of pressure being brought to bear. It is never a good idea to wait until the last minute.
While it might seem odd to consult with a divorce/family law attorney in advance of your nuptials it is highly recommended and may avoid protracted, expensive and unnecessary litigation with your spouse in the future. As the old saying goes “an ounce of prevention is worth a pound of cure.”
Maura Barrett is a divorce and family law attorney with over 30 years of experience. She represents clients in both Dutchess and Putnam Counties and sees clients at her Town of Poughkeepsie Office and in Pawling, where she resides. MauraBarrettlaw.com