Matrimonial and Family Law Blog

Thursday, January 31, 2019

Five Things You Should Know About Prenups

Marital agreements may not sound romantic, but they offer a variety of benefits. A prenup , or prenuptial agreement, is an agreement you enter before marriage. Each spouse must disclose all money and property they own during the process of deciding the financial rights and responsibilities of each spouse during the marriage. The prenup also addresses various financial matters should one of the parties die or the marriage ends.

Our New York marital agreements lawyer discusses some of the important information related to prenups in this article.

Five Things About Prenups That You Might Not Know

  1.  Prenups can override property division laws in New York.
    When a couple divorces, New York divorce laws determine how property should be divided.  However, a valid prenuptial agreement controls how property and assets are divided in a divorce instead of allowing the courts to make those decisions. As long as the prenup was entered into with full and fair disclosure and is legally enforceable, the prenup can divide the property in a divorce in whatever manner the parties agreed to when they entered the agreement.
  2.  Prenups can also establish maintenance payments.
    Most people are aware that prenups can establish maintenance payments (alimony or spousal support) during and after a divorce. The prenup can determine the length of maintenance payments and how the amount of maintenance payments is calculated. However, prenups can also establish maintenance payments during the marriage. This element could be important if one spouse is giving up a career to become a “stay at home” parent.
  3. A prenup cannot determine child custody and child support issues with absolute definitiveness. 
    New York child support and custody laws require judges to make decisions related to these issues that are in the best interests of the child.  Therefore, a judge must review the provisions of a prenup regarding custody and support to ensure that the provisions do not harm the child. If the provisions of the prenup regarding support and custody exceed what a judge would order based on the facts in the case, the judge may adopt the prenup terms into a final order, but the decision is ultimately left up to the courts.
  4. Spouses should have separate attorneys to negotiate the prenup agreement.
    To ensure that the prenup agreement was negotiated fairly and neither party was under duress, the parties should have separate attorneys. If one party did not have an attorney or one attorney represented both parties, the court may examine the agreement more closely. Agreements that appear to be unfair and inequitable could be ruled invalid, especially if the party being treated unfairly did not have an attorney.
  5. Prenup agreements can decide how assets are distributed after death.
    Most people think about prenup agreements as a way to decide how assets are divided in the event of a divorce. However, a prenup agreement can also decide how assets are distributed after your death. In most cases, it is recommended that a prenup is drafted in conjunction with the terms of a will to avoid any confusion or conflicts.

Call a New York Divorce Attorney for More Information

If you have questions about prenups, a New York family law attorney can answer those questions and provide additional information about the benefits and advantages of prenups. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York family law lawyer today. 

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