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Posted on February 8, 2024

What Should a Woman Ask for in a Prenup in New York?

Divorce can be a complex and stressful process, especially when it comes to dividing assets and debts between spouses. In New York, prenuptial agreements can provide specific advantages for women, especially for those who are entrepreneurs or have significant assets. However, it’s crucial to understand the laws governing prenuptial agreements in your state, as well as the distinction between separate and marital property, before entering into a marriage. 

A prenuptial agreement can safeguard premarital assets, limit debt liability, and establish the amount and duration of spousal support in the event of a divorce. Moreover, it can minimize conflicts during the divorce process, saving both time and money. Understanding the specific regulations and requirements for prenuptial agreements in New York is essential to ensure that your contract is legally enforceable. 

At the Law Office of Richard Roman Shum, our team of experienced New York family law attorneys may be able to help you create an equitable prenuptial agreement that protects your financial interests and provides a fair outcome should you decide to separate. Contact us today at (646) 259-3416 to schedule a consultation.

Understanding Prenuptial Agreements

A prenuptial agreement, commonly known as a prenup, is a legally binding contract entered into by both individuals before their marriage. This agreement specifies the distribution of assets, liabilities, and financial obligations the couple will assume if the marriage ends in divorce, legal separation, or the death of one of the spouses.

Prenups can vary depending on the couple’s individual circumstances, financial situations, and personal preferences. The primary purpose of a prenuptial agreement is to protect each person’s separate property and define how joint assets will be divided in the event of separation. It can also address issues such as spousal support, financial responsibilities during the marriage, and inheritance rights for children from previous relationships.

Benefits of a Prenup

Prenuptial agreements can provide particular advantages for women, especially for those who are entrepreneurs or have significant assets. Some of the benefits include:

  • Protection of premarital assets: A prenup allows couples to safeguard their premarital assets, such as business ownership, investments, or real estate, in the event of a divorce. This ensures that you retain control over your assets and prevent them from being divided during a divorce settlement.
  • Limitation of debt liability: If your spouse has significant debt before the marriage or accumulates debt during the marriage, a prenuptial agreement can protect you from being responsible for these debts upon separation.
  • Control over estate planning: Prenups can be used to outline inheritance rights for children from previous relationships, ensuring they receive their intended inheritance.
  • Planning for financial stability: A prenuptial agreement can establish the amount and duration of spousal support, if any, which can provide financial security and stability for the spouse with lesser income in the case of a divorce.
  • Facilitation of an efficient divorce process: By deciding the division of assets and property beforehand, a prenuptial agreement can minimize conflicts during the divorce process, saving both time and money.

New York’s Prenup Laws and Requirements

Each state in the United States has its own set of laws and requirements for prenuptial agreements. New York has strict regulations in place to ensure that these contracts are legally enforceable. Some of the key aspects of New York’s prenup laws include:

  • Written agreement: The prenuptial agreement must be in writing and signed by both parties. Oral agreements are not legally binding in New York.
  • Voluntary consent: Both parties must enter the agreement voluntarily, without coercion or duress. If a court finds that one party was forced to sign the prenup, it can be deemed unenforceable.
  • Full disclosure of assets and liabilities: Both parties must provide a complete and accurate disclosure of their financial situation, including assets, liabilities, and income. Failure to disclose or misrepresentation of financial information can lead to the agreement being invalidated.
  • Fairness: The terms of the prenuptial agreement must not be unconscionable or extremely unfair to either party. If a court finds that the agreement is excessively one-sided, it may be considered invalid.
  • Proper execution: New York requires that prenuptial agreements be signed in the presence of a notary public, and both parties must have independent legal representation.

Understanding prenuptial agreements and the laws governing them in your state is essential for protecting your financial interests and ensuring a fair outcome should you decide to separate. It is advisable to consult with an attorney specializing in family law to prepare a legally enforceable and equitable prenuptial agreement.

How to Ask for a Prenuptial Agreement

Discussing a prenuptial agreement can be a delicate matter, but with the right approach, it can also pave the way for honest communication and a stronger relationship. If you’re in New York and considering a prenup, it’s essential to navigate this conversation with care and respect.

Start Early: Timing is crucial. Begin the conversation well before your wedding plans are in full swing. This gives both parties ample time to ponder and discuss the agreement without the pressure of impending nuptials.

Be Transparent: Honesty is the foundation of any strong relationship. Explain your reasons for wanting a prenup, focusing on the financial clarity and security it provides, rather than mistrust or anticipation of failure.

Listen Actively: Give your partner the chance to express their feelings without interruption. Understanding their perspective might help you address any concerns they have about the agreement.

Educate Yourselves: Misconceptions about prenuptial agreements abound. Both of you should research New York family law or consult with an attorney to understand how a prenup might benefit both partners.

Seek Professional Help: A family law attorney can provide impartial advice and ensure the agreement is fair and complies with New York law. They can also help draft an agreement that reflects both of your wishes.

Emphasize the Positive: Frame the prenup as a mutual step towards protecting your future together. It’s not just about safeguarding assets, but also about ensuring both partners’ peace of mind.

Remember, a prenuptial agreement isn’t about mistrust; it’s a practical tool for managing the financial aspect of marriage. Approaching the topic with sensitivity and preparedness can make all the difference.

Identifying Separate and Marital Property

Before dividing assets during a divorce, it’s crucial to classify them into two groups: separate and marital property. Separate property typically consists of assets that were owned by one spouse before the marriage, gifts or inheritances received during the marriage, and personal injury awards. Marital property, on the other hand, typically encompasses all assets acquired during the marriage, regardless of who earned or purchased them.

In some cases, separate property can become marital property if it’s mixed with marital assets to the point where it’s impossible to identify the original separate asset. For example, if a spouse inherits money and then deposits it into a joint bank account, it may be considered marital property. To prevent this inadvertent commingling, it’s crucial to maintain detailed records and keep separate property separate from marital assets.

Real Estate and Properties

Real estate holdings, such as your primary residence, vacation homes, and rental properties, also need to be assessed and divided during the divorce proceedings. In many cases, determining the value of these properties might require a professional appraisal. When dividing real estate, the couple can either agree upon a property’s value or require the courts to decide. Factors such as the purchase date, appreciation in value, and any associated mortgage or loan balances come into play when identifying real estate as marital or separate property.

When dividing the marital residence, some couples choose to sell the home and split the proceeds, while others might buy out the other spouse’s share of the property. Some even maintain their home as a joint investment or choose to defer the sale until a later time when the market is more favorable. Each couple’s circumstances and future plans will determine which option works best for them.

Bank Accounts, Stocks, and Investments

Bank accounts, stock portfolios, and other investment vehicles must also be divided during the divorce process. In many cases, joint accounts are simply divided equitably between the two parties. However, situations with individual accounts that have both separate and marital funds can become more complicated. To fairly distribute such assets, a detailed examination and tracking of deposits, withdrawals, and fund sources may be necessary.

In addition, couples often have joint stock holdings, business interests, or investment accounts that must be assessed and divided. There may be tax implications and other financial consequences for closing or dividing these accounts, which necessitates expertise from financial and legal professionals.

Retirement Accounts and Benefits

Retirement accounts are often some of the most significant assets in a marriage, and dividing them can be both financially and emotionally challenging. The process of dividing retirement accounts varies based on the type of account (e.g., 401(k), IRA, pension) and the jurisdiction’s specific laws. In many cases, a Qualified Domestic Relations Order (QDRO) is required to authorize the division of retirement accounts without incurring tax penalties. Collaborating with a skilled attorney and financial advisor can help ensure that your retirement assets are divided fairly and with minimal tax consequences.

Inheritance and Gifts

Generally, inheritance received by one spouse during the marriage is considered separate property, as are gifts given specifically to one spouse. However, as mentioned earlier, if inheritance or gifts are commingled with marital property, they can become marital assets. Additionally, if a gift is given to both spouses, such as wedding gifts or joint gifts received during the marriage, those assets are typically considered marital property and, thus, subject to division.

In conclusion, dividing personal and financial assets during a divorce can be a complex and contentious process. Collaborating with experienced legal and financial professionals, and understanding the distinction between separate and marital property, can help ensure a fair and equitable division of your assets while minimizing conflict and stress.

Division of Premarital and Marital Debts

Entering into marriage is an exciting and monumental life event. To ensure that both parties are protected and well-prepared, it’s essential to consider a prenuptial agreement. This legal document helps outline the division of assets and debts, should the marriage end in divorce. In states like New York, the equitable distribution principle governs the allocation of both marital assets and liabilities. By establishing a prenuptial agreement, couples can proactively address potential financial concerns and create a clear understanding of their financial responsibilities during the course of the marriage.

Marital debt in New York includes all debts accumulated during the marriage, regardless of which spouse incurred them. This encompasses credit card debt, mortgages, car loans, medical bills, and advanced degree educational loans.

Separate debt, on the other hand, isn’t subject to equitable distribution by the courts. This type of debt usually includes debt incurred by one spouse before the marriage, as long as it hasn’t been converted into marital debt. However, certain debts may be excluded from distribution by the New York courts, such as those incurred during the marriage without the other spouse’s knowledge, debts resulting from extramarital affairs, or debts solely attributable to one spouse and unrelated to marital expenses.

If a couple demonstrates clear intent to pay down a spouse’s premarital debt, separate debt can become marital debt. For example, if a spouse enters the marriage with $15,000 in credit card debt and the couple uses a joint account to reduce the balance, the debt may be considered marital debt.

The division of debts can be a complicated process with significant financial consequences for both parties after the divorce. An experienced family law attorney can assess your specific circumstances and help you understand your rights and obligations, whether through negotiation or litigation.

Income Disclosure and Maintenance

Full and accurate disclosure of each party’s income and assets is essential for crafting a fair and enforceable prenuptial agreement, which can help determine the appropriate division of property and spousal support in the event of a divorce. Both parties must provide comprehensive financial information, including sources of income, assets, liabilities, expenses, and investments.

It is often necessary for experts to assess the earning capacity of each partner, particularly if one has been out of the workforce for an extended period due to child-rearing or other caregiving responsibilities. Factors that could influence future earnings, such as age, health, education, and employment history, should also be considered in drafting a prenuptial agreement.

Any attempts to conceal assets or income can lead to severe consequences, including legal and financial penalties. Both parties must be transparent about their financial situation to avoid complications in the future.

Prenuptial agreements may also address maintenance, the ongoing financial support one spouse might be required to provide to the other in case of a divorce. This is distinct from alimony, which typically covers a specified period. Maintenance can be included in a prenuptial agreement under certain circumstances, such as when one partner has been financially dependent on the other, or when one spouse requires financial assistance to maintain their standard of living.

Spousal Support (Alimony)

In the case of a divorce, a prenuptial agreement can deal with spousal support, which is also known as alimony. While both spouses generally have the right to claim alimony, they are not obligated to do so. If the spouses agree to forego spousal support, they can state this in the prenuptial agreement. However, the agreement must be fair and enforceable, as determined by a judge.

The prenuptial agreement can address alimony by specifying the amount, form, and timing of payments, or by agreeing to waive spousal support altogether. This can save the couple from a long and expensive legal battle over spousal support. However, if waiving alimony would create significant financial hardship for one spouse, the provision may be considered unfair and invalidated.

This is particularly true if one spouse made significant sacrifices, such as putting their career on hold to start a family, which impacts their earning potential. In this case, enforcing the alimony provision would be considered unjust, and the provision may be nullified.

Negotiating and Drafting the Prenup

Once you have chosen your family law attorney, the process of negotiating and drafting your prenuptial agreement begins. Some key steps include:

  • Identify your goals. Before drafting the agreement, it’s essential to have a clear understanding of your financial situation and what you hope to achieve through the prenup.
  • Full disclosure. Both parties must provide a full and accurate disclosure of their assets and liabilities to ensure that the agreement is fair and legally enforceable.
  • Identify the terms. The agreement should outline the division of property and debts, as well as any spousal support or maintenance provisions.
  • Draft the agreement. Your attorney will work with you to draft an agreement that is tailored to your specific needs while also complying with New York law.
  • Negotiate any necessary changes. Both parties may need to negotiate and compromise on certain terms to ensure a fair agreement.

Reviewing and Finalizing the Prenup

Once your attorney has drafted your prenuptial agreement, it is essential to review it carefully to ensure that it reflects your intentions and complies with the law. This may involve incorporating changes suggested by your attorney or addressing any concerns raised during negotiation.

It is crucial that both parties have independent legal counsel review the document to ensure that no undue influence or coercion has occurred. This will help preserve the enforceability of the prenup.

Lastly, the prenuptial agreement must be signed by both parties in the presence of a witness and notarized. Keep in mind that ideally, the agreement should be executed well before the wedding date to avoid any potential legal challenges arguing that the agreement was entered into under duress.

Once the agreement is signed, it becomes legally enforceable and will govern how your property, debts, and assets are divided in the event of a divorce or separation. While it may not be a romantic notion, having a prenuptial agreement in place can provide important financial protections and peace of mind for both parties.

Prenup Modifications and Termination

A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by two individuals before getting married. The main purpose of a prenup is to establish the property and financial rights of each spouse in the event of a divorce. Although a prenup is created with the intention of being in force throughout the marriage, situations may arise that necessitate its modification or termination. 

Couples may want to amend their prenup for various reasons. Some common grounds for modifying a prenuptial agreement include:

  1. Change in financial circumstances: A significant change in the financial situation of one or both spouses may necessitate a revision of the original prenup. For example, if one spouse starts a successful business or receives a substantial inheritance, the couple may decide to update the prenup to reflect these new circumstances.
  2. Addition or subtraction of assets: If the couple acquires significant assets during the marriage, such as real estate or investments, the prenup may need to be amended to include these items. Conversely, if certain assets are sold or disposed of, the agreement may need to be modified to remove them.
  3. Children: If a couple has children after signing the prenup, they may wish to modify the agreement to address issues related to child custody, support, and visitation.
  4. Clarification of terms: If certain terms or provisions of the prenup are unclear or ambiguous, it may be in the best interest of both parties to revise the agreement to provide greater clarity and certainty.
  5. Mutual consent: The couple may simply decide, at some point during their marriage, that they wish to alter the terms of their prenup to better suit their current needs and goals.

It should be noted that changes to the terms are not possible for a separated couple or those undergoing divorce proceedings. Modifications can only be made prior to or during the marriage.

Grounds for Pre-nup Modification Brief Explanation
Change in financial circumstances Significant financial changes may require revising the prenup, such as if one spouse starts a successful business or receives a substantial inheritance.
Addition or subtraction of assets If significant assets are acquired or sold during the marriage, the prenup may need to be amended accordingly to include or remove these assets.
Children Modifying the prenup to address child-related matters becomes necessary if the couple has children after signing the agreement.
Clarification of terms Revision may be needed to provide better clarity and certainty if certain terms or provisions of the prenup are unclear or ambiguous.
Mutual consent The couple may decide to alter the prenup’s terms during their marriage to better suit their current needs and goals.

Seeking the Legal Assistance of a Skilled New York Family Law Attorney

Hiring a family law attorney is essential when drafting a prenuptial agreement to ensure that the terms are clear, enforceable, and legally sound. A prenuptial agreement, also known as a prenup, is a legal document that outlines how assets and liabilities will be divided in the event of a divorce or separation. This agreement can help protect the interests of both parties and can save time, money, and emotional distress in the future should the relationship come to an end.

At the Law Office of Richard Roman Shum, our experienced New York family law attorney can help you understand the legal implications and consequences of the decisions you make during the drafting process, allowing you to make informed choices about your financial future. This is particularly crucial in situations involving complex assets, inheritances, or business interests, as well as for individuals entering subsequent marriages or those with children from previous relationships. Contact us today at (646) 259-3416 to schedule a consultation.

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