Prenuptial Agreements are agreements made before the marriage that enable the parties to determine, for themselves, their rights and responsibilities in the event they divorce or separate and to address certain estate rights. Determining their rights in advance gives the parties control over their own destinies, and avoids the future cost, stress and time of having those issues determined in a contested divorce.
A Prenuptial Agreement can address all, or some, of the important financial and custodial marital issues in a future divorce such as equitable distribution which is the ownership and distribution of assets and the allocation of liabilities, maintenance (spousal support formerly known as “alimony”), the care and custody of children, and child support.
A Prenuptial Agreement can address certain estate rights such as making a provision in a will or waiving the rights that a spouse would otherwise have in the estate of their spouse. This is very useful in a second marriage where one or both of the spouses have children from prior relationships who they want to provide for.
A Prenuptial Agreement does not have to address all the issues. The parties can choose the issues that they want to have in the Prenuptial Agreement and those issues that they do not want to include. There are different reasons depending on the parties’ particular circumstances. As one example, the parties may know that they want to equally divide their assets but do not want to provide for maintenance because they do not know what their incomes and assets will be in the future or how it may be affected by children they may have at the time.
There are financial consequences that come with getting married. Those consequences can be provided for in a Prenuptial Agreement or they can be left unaddressed.
Prenuptial Agreements provide certainty by enabling the parties to address issues in a way best for them. Prenuptial Agreement benefits the people who use them. It allows them to plan their future and have financial certainty and stability. It avoids contentious, costly and unpredictable legal disputes if there is a future divorce. It allows people to keep control of their finances rather than leaving important financial issues to judges and lawyers in the environment of an emotionally charged and prolonged contested divorce case.
New York law and public policy favors the use of Prenuptial Agreements. New York law recognizes the benefits of people resolving their issues by agreement instead of through contested court proceedings.
Prenuptial agreements are binding contracts. A Prenuptial Agreement must be carefully considered as it will be addressing important rights in the future – often many years in the future – and it will be addressing those rights under circumstances that are often not yet known at the time the agreement is made, such as the parties’ future incomes and properties, children, and the future health of the parties and children. The implications and consequences of these agreements should be thoroughly reviewed with and explained to the client before signing it.
A unique characteristic of a Prenuptial Agreement is that it necessarily considers a divorce at the very time the parties are planning their marriage. It puts them in the sometimes awkward position of negotiating the best terms for themselves in the event of a divorce – the seemingly unthinkable – before the wedding. It can cause strain as the parties will often be at odds on some or even all the issues. The guidance of an experienced attorney through these matters is invaluable.
Prenuptial Agreements also have certain legal requirements that make them different than other contracts. To be valid, they must comply with signing formalities mandated by New York law. Unlike other contracts, Prenuptial Agreements can, under certain circumstances, be vacated or cancelled by the Courts long after it was made - such as at the time of a divorce. Some reasons for vacating a Prenuptial Agreement are if the terms are inherently unfair, if it was made under legal duress, or if it was not properly executed. Prenuptial Agreements must be thought out and done properly.
Prenuptial Agreements are very important agreements as they affect important rights. Your objective should be getting favorable terms and to have it done quickly and with the least friction.
Proper legal representation is essential. The attorney must be thoroughly familiar with divorce law and should have the experience to guide this delicate process to a speedy and successful conclusion.
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