New York Prenuptial Agreement
In New York, as in other states, prenuptial agreements, or "prenups," are viewed in various ways. Some see them as a suggestion that they are entering into a marriage with the intent or expectation that the marriage will terminate prematurely. Others think of prenuptial agreements as nothing more than a good business arrangement or an insurance policy in the event that the marriage ends; a prenuptial agreement will help curtail many of the painful emotional issues that might ensue in such a situation. Either way, a prenuptial agreement primarily arranges for the distribution of financial assets should a marriage terminate prior to the death of one of the spouses.
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Items to Consider in a Prenuptial Agreement
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The items you might wish to protect in your prenuptial agreement are going to vary depending on the person and the situation. Some things that are commonly included are alimony (parties may wish to waive all rights to alimony provided by law depending upon their financial situation or other provisions made in the prenuptial agreement for spousal maintenance in the case of a divorce); debts (each party may be required to pay any debts they incurred prior to their marriage due to that party's separate property); separate property (usually refers to rights and interest in property owned prior to the marriage).
Not Just for the Wealthy
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Generally considered a protection for the wealthy, those who have managed to save $50,000 may feel the need to protect what they have secured in case they find themselves losing it to a bad marital decision. You may want to consider a prenuptial agreement if 1) you own a home, stocks or physical assets such as a home you wish to protect; 2) you own your own business or are a partner in one; 3) you expect to receive an inheritance; 4) you have children from a previous marriage; 5) you or your spouse has much more money than the other; 6) you have supported the other spouse through college; 7) you need to ensure the continued care of loved ones; or 8) you are about to receive a degree which will put you into a lucrative profession, or your business is about to become suddenly financially successful.
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Discussing the Subject
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The least painful way of broaching a subject like a prenuptial agreement is to be honest and open about it from the onset of any relationship you find yourself in. If it has been mentioned before the relationship has become serious, it will not seem so jarring when brought up later.
When you do talk about a prenup once you've decided to become engaged, be sure and be honest and frank; set romance aside for the moment and express your concerns. Also be sensitive to the other person's feelings and concerns.
First Steps in Drawing up a Prenup
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Once you have gotten past the idea of forming a prenup, sit down with your fiance and discuss options. It is best to list the assets of both parties and discuss what each of you finds fair should you find yourselves separated. Also consider the future and any earnings, children and the needed support of the other. With most of these ideas settled, it is good advice to hire lawyers--both his and hers so there is no later legal wrangling regarding necessary representation at the time of the prenuptial formation. With each side having legal representation protecting their interests, have one lawyer draw up the prenuptial agreement and the other review and agree to it.
Follow the Legalities
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Be sure to formally and legally draft your prenuptial agreement to help ensure its enforceability. It is also good practice that the prenup be signed in triplicate, giving each married party an original copy and the third being kept by a lawyer. Be sure your attorney is familiar with prenup laws in the state of New York and preferably works in the family legal field.
Remember that rights to child support payment cannot be waived, though provisions for child support can be determined if they are in excess of state expectations.Though similar, a will is not the same thing as a prenuptial agreement and does not supercede the prenup--even if the will is more generous than the prenuptial agreement.
Benefits of a Prenuptial Agreement
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Prenuptial agreements can prevent many potential problems. For example, without a prenuptial agreement, your assets will be distributed by the state of New York if you and your spouse are unable to agree upon a fair method, according to what the court deems fair, taking into account issues you may find irrelevant, such as the length of the marriage, or the couple's age, health and job skills. This means that it is entirely possible that your children may not receive certain assets because the state decided to award them to the children your spouse produced in a previous marriage. You can avoid painful outcomes such as these if you have a legally drawn up prenuptial agreement. No uninterested party will be making the decisions for you.
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