Once you’ve decided to tie the knot with your significant other, you then come across the concept of a prenuptial agreement and wonder, “what is a prenup and do I need one?”
A prenup is a contract entered into by two persons who are intending to marry, signed prior to the marriage. The prenup sets forth the rights and obligations of the parties to each other in case of death or divorce. Usually, these rights and obligations refer to spouses’ property rights and obligations. Some prenups have attempted to address custody and child support issues. Although this is a point of consideration, the courts are not bound and will always evaluate a prenup’s custody and child support provisions to see whether they were made for the best interests of the child.
Requirements of a valid prenup
To be valid, a prenup in New York must be:
- in written form
- signed by the future spouses before the marriage; and
The future spouses must also marry in order for the prenup to be valid. If the future spouses sign a prenup and then break up before getting married, the prenup is not valid or enforceable.
Can a prenup be contested, challenged, canceled or set aside
The prenup may also be questioned and challenged before the court on the following grounds:
- Attorney conflict of interest – The future spouses used one attorney and the prenup is unfair for one spouse and in favor of another.
- Fraud – One future spouse misrepresented his assets and financial situation.
- Unconscionable – The prenup was severely unfair and inequitable at the time it was signed. For example, a prenup that has left one spouse with absolutely nothing during divorce can be considered unconscionable.
- Coercion or duress – One future spouse was forced to sign the prenup under pressure or was not given enough time to review the prenup before signing. However, the threat not to marry if the prenup is not signed is not considered duress or coercion.
What is in a prenup
A prenup addresses many different issues, such as but not limited to:
- the identification of marital and separate property, including the classification of future property;
- the amount of spousal support or alimony;
- child custody, child support, and visitation issues;
- establishing debt incurred prior to the marriage;
- establishing support for children of a prior marriage;
- protection of pension and retirement accounts; and
- protection of business and intellectual properties.
Typical situations where a prenup is used
A prenup is typically used in these scenarios:
One future spouse is wealthier than the other
Although one might think that the prenup will not benefit the poorer spouse, this is a wrong impression. A prenup can also benefit the poorer spouse because the poorer spouse can already negotiate on issues of spousal support or alimony. Usually, an “escalator clause” is inserted in a prenup to make the amount of support or alimony dependent on income or the number of years the couple is married.
One future spouse has children from a previous marriage
In New York, the spousal right of election entitles a spouse to the greater of $50,000 or 1/3 of the net estate upon the other spouse’s death. To go around this provision, a future spouse can waive this spousal right of election in a prenup, allowing you to leave a majority of your estate to your children from a previous marriage. If this is not addressed, when you die first before your subsequent spouse, your spouse may inherit most of your property, and when she dies, it goes to her heirs (who are not your children from a previous marriage).
If you were not able to address this in a prenup, you can still execute a post-nuptial agreement with your spouse. If your spouse refuses to sign a post-nuptial agreement, you can consult an estate planning lawyer on the use of a qualified terminable interest property (QTIP) trust.
You would like to identify which property is separate and which property is marital
A prenup allows the spouses to determine which property is separate and which property is marital. For example, you use a prenup when you have a business or you have a sizeable inheritance you expect to receive in the future that you’d like to keep as separate property. You can also state that income from this particular source is separate while income from another source is marital.
Remember however that, despite the fact that you have identified certain property as separate or marital in a prenup, your actions during the marriage can make separate property be deemed marital. For example, if you have a house that you already purchased prior to the marriage, and during the marriage, you transfer the title to both you and your spouse, the house may be deemed to be marital property because you are considered to have made a gift to your spouse. Another example is, if you receive an inheritance from your deceased father during the marriage, this is considered separate property. However, if you place this money in a joint account with you and your spouse as account holders, instead of putting it in a separate bank account in only your name, the inheritance you received, though considered separate property, may be considered marital due to your actions.
One spouse has a significant amount of debt
If your future spouse has a significant amount of debt, such as student debt, you might want to get a prenup. Although debt prior to the marriage is considered separate debt, any property and income acquired during the marriage is considered marital property in New York. Thus, if you are the higher income earner, in the event of divorce, your spouse will own half of what you both have accumulated during the marriage which can answer for his separate debt. If you want to make sure that your money is not used to pay for someone else’s debt, you need a prenup.
If you are engaged to be married and have debt or property, you should discuss with your spouse these financial issues and consider what you can put in a prenup. Anyway, these are issues you would also have to address when you are already married. When you have significant debt or property or children from a previous marriage, a prenup will be helpful and will prevent a contested divorce, saving you legal expenses in the future.
Should you need assistance in drafting a prenup, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.