The basics of New York prenuptial agreements

April 19, 2013

The basics of New York prenuptial agreements

Article provided by Quinlan and Fields Attorneys and Counselors at Law
Visit us at http://www.quinlanandfields.com

"Unromantic." "Lifesaving." "Dooming a marriage." "Preserving a retirement." "A 'slap in the face' to your loving fiance." "An honest discussion of financial matters necessary to start a marriage on level ground."

As you can see, opinions of prenuptial agreements are all across the board, encompassing nearly every perspective imaginable. Some people view them as a pre-wedding death knell of marital love and trust, while others see them as being indispensable for anyone with more than the proverbial two nickels to rub together.

How you view prenuptial agreements depends on many factors, among them your age, your financial worth, your history, your social upbringing, your education level, your religion, your friends and your family. While your own worldview might color whether you think prenups are to be embraced as a valuable economic tool or shunned since they are akin to breaking up a marriage before it even starts, it is still possible that one could be beneficial for you, so knowing the basics of how they work is important.

The value of a prenup

A prenuptial agreement - sometimes called a "premarital agreement"- is a contract in which parties can set forth particular wishes for the dispensation of separate or marital property should a marriage dissolve. They can be particularly helpful when it comes to property division, since they can be used to protect family heirlooms or businesses. In the past, they have almost exclusively been used by couples where one or more spouse has a high net worth, but they are becoming more common among younger couples as the average age of marriage, especially in cosmopolitan areas like New York, has risen from mid-20s to mid-30s and people are coming in with more of their own assets.

Another helpful use of prenuptial agreements is for subsequent marriages, particularly where there are children involved. Estimates are that as many as 70 percent of subsequent marriages fail, so it is wise to plan for the possibility. Prenups can delineate that certain assets remain with the children of a former marriage following a divorce regardless of how state "equitable distribution" laws might otherwise dictate.

Prenups can also set forth specific lump sum amounts that the spouse with the lower net-worth will receive once the marriage hits certain milestones (often in 5-year increments) or following the birth of children.

The downside

More frivolous - and often easier to challenge - are prenups that order so-called "lifestyle" provisions like:
-Ensuring that the parties maintain a certain level of fitness
-Neither party smoking in the marital home or car
-Vacations should be taken during a certain time of the year or to a particular locale
-The family must not ever have a particular type of pet
-The parties enjoying a minimum level of intimacy

These sorts of provisions may indeed be important to a party when the prenup is drafted and signed, but judges are often reluctant to enforce them in a divorce since they often deal with the interplay between personal behavioral choice and forced accommodation to unfair terms.

Thinking about a prenup?

Feelings about prenups vary as widely in the legal community as they do in the general public, but there are definite benefits and risks that come along with them. If you are considering drafting a prenuptial agreement, or you are divorcing and would like to challenge an onerous prenup, speak with an experienced family law attorney in your area to learn more about your legal rights, responsibilities and options.