Prenuptial agreements, commonly known as a prenup, are a contract that a couple creates before getting married. They are used to establish the rules and responsibilities of each spouse in the event of a divorce or death. Typically, couples use prenups to determine how their assets will be split in a divorce.
When couples decide to create a prenuptial agreement, they need to determine what rights they want to be protected in the event their marriage ends. While prenuptial agreements can offer protection in several ways, couples should consider including the following in their contract.
Protection for Your Children
New York courts won’t uphold decisions about child custody, visitation, and support in a prenuptial agreement. However, a prenup can still be useful in determining what property a spouse’s child will get in the event of a death or divorce. If a spouse has children from prior relationships, this helps ensure they will receive some or all of the property.
Define Marital Property and Separate Property
In New York divorce cases, each spouse has either marital property or separate property. Assets acquired before marriage are separate property, and assets acquired during the marriage are marital property. When couples get divorced, they have to split their marital property during property division.
In the prenuptial agreement, it is important to define what will be separate or marital property. For example, if one spouse owned a house before they got married and wanted to make sure they kept it in the event of a divorce, they would want to list it as separate property in the prenup.
Each spouse is allowed to keep their separate property. However, sometimes people forget what property is separate or marital by the time they get divorced. If one spouse had separate property, and the other spouse increased the value of it by contributing income and resources to improve it, the property might be considered marital property in the event of a divorce.
Protection From Your Spouse’s Debt
A prenuptial agreement can also state what happens to one spouse’s debt in the event of a divorce. Typically, if one spouse has a large amount of debt, the prenuptial agreement will state that they are responsible for it in the event of a divorce. The other spouse will not be required to pay it. In this case, the spouse without debt would want to require that the spouse with debt defines it as a separate property in their marriage.
Protect Your Estate Plans
In New York, there are laws that state what happens to an estate if a resident dies without leaving a will. If one spouse dies and there are surviving children, the surviving spouse inherits the first $50,000 of the deceased spouse’s estate, and the remaining balance of the estate will be split between the spouse and the children. If there are no children, the surviving spouse receives the entire estate.
Even if there is a will, surviving spouses are still entitled to $50,000 or one-third of the estate, or one-half of the estate if there are no children. In the prenup, a spouse can waive those rights, meaning they will not take any of the inheritance. If one spouse has children from a prior marriage and wants to leave the bulk of their estate to them, a prenup will allow them to do this.
Determine Alimony Decisions
In the prenuptial agreement, it is important to include decisions about how alimony will be distributed if the couple gets a divorce. This can state what support one spouse will be required to pay the other, or it can state that no support is required. Often there will be stipulations that either spouse must follow in order to receive spousal maintenance.
Contact a Trusted Lawyer Today
No matter what you include in your prenuptial agreement, you should seek help from an experienced attorney. Friedman & Friedman PLLC, Attorneys at Law will work with you and your future spouse to ensure your prenuptial agreement addresses all of your concerns and effectively protects both you and your spouse in the event of a divorce.
Call Friedman & Friedman PLLC, Attorneys at Law (914) 873-4410 today if you need help drafting your prenuptial agreement.