Congratulations on the engagement! The weeks and months leading up to your wedding will be as joyous as they will be nerve-wracking, but every day brings you one step closer to what may very well be one of the happiest days of your life. Amid the pre-marital bliss, you and your fiancé or fiancée will have a host of responsibilities, such as obtaining a marriage license; hiring a judge, clergy-person, or elected official to officiate; mailing invitations to friends, family, and colleagues; and securing a venue. Drawing up a pre-nuptial agreement may sound like the least romantic task possible in the lead-up to the wedding, but despite the stigma and perception, it is in the months prior to the marriage that the major decisions in the agreement must be made. Even if you do not want to consider the possibility of divorce, you and your spouse-to-be can benefit from learning more about what prenuptial agreements in New York have to offer.
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In the Absence of a Pre-Nuptial Agreement, Equitable Distribution Comes into Play.
As an “equitable distribution” state, New York assumes that whatever wealth or debt you bring to the marriage is “separate property,” and all assets earned and debt incurred during the marriage is “marital property.” This court divides “equitably,” which does not necessarily mean equally, though it will usually fall at around 50/50.
These Agreements Clearly Delineate What Belongs to Whom—Saving Money in the Event of Divorce.
A pre-marital agreement can assist in two regards. First, the agreement can definitively designate what property is separate. An accurate catalog of assets can be very useful later, especially if divorce proceedings become contentious. Second, prenuptial agreements can explicitly waive the right to equitable distribution, and state alternatively what marital assets the parties to the marriage are to receive and for what debt each will be responsible. The pre-nup can even set a time limit and dollar amount for spousal maintenance.
Pre-Nuptial Agreements Do Have Limitations to Their Coverage.
While a pre-marital agreement can set certain terms in anticipation of divorce, it cannot define the parameters of child custody, child support, or visitation. Your interests are not central to these decisions; the court will always prioritize the best interests of the child. Maintenance and child support are complicated solely because the court looks at the parties’ financial circumstances and their income at the time they get divorced.
The Law Will Help to Settle Anything Not Covered by Prenuptial Agreements.
While prenuptial agreements may be able to include terms regarding child support and maintenance, and that will be evidence of the parties’ intentions in the event that they do get divorced, it is only at the time of divorce when the court will review the parties’ income and financial circumstances to determine the child support and the maintenance. As the court deliberates, it will review the agreement in that respect
Pre-Nuptial Agreements Are Not the Only Options Available.
There are different types of agreements into which people enter either in anticipation of a divorce or during the divorce itself. Property settlement agreements and prenuptial agreements are arrangements wherein parties are able to reach their own resolutions as to their financial circumstances, assets, liabilities, child support maintenance, and even the payment of distributive awards. A postnuptial agreement is similar to these types of arrangements, except that the parties enter into it after they are married and in anticipation of the possibility of a future divorce.
Of course, thinking about ending your marriage before it has even begun is hardly an appetizing prospect. A pre-nuptial agreement does not mean that anyone is considering separation or divorce; it is merely a safeguard in case worst comes to worst. Our team of family and marital law experts has guided many a couple through the process of devising and signing these agreements, and if you and your betrothed are considering the safety net that is a pre-nup, reach out to our office to learn more about your options.
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