On behalf of Cobert, Haber & Haber Attorneys at Law posted in Prenuptial agreement on Tuesday, February 21, 2017.
Many people believe that romance, love and happiness epitomize a wedding. Why would you want to sully those emotions by asking your betrothed to sign a prenuptial agreement? Simply put, a prenup settles certain financial issues between you and your soon-to-be spouse that could come up in the event of a divorce. It might help to think of it as an insurance policy – you buy insurance with the hope that you never need it.
What are the advantages of a prenuptial agreement?
You and your fiancé earn unique benefits from the process of creating a prenup, but in general, many New York couples see the following advantages:
- Identifying separate property
- Separating debts and who pays them
- Identifying community versus marital property
- Avoiding property division in a divorce
- Eliminating a courtroom battle
- Reducing potential conflicts in a divorce
- Establishing rules and procedures governing certain issues
Prenuptial agreements might also be part of an estate plan in order to avoid the court becoming involved in the distribution of your property.
What disadvantages come with a prenup?
Outside of failing to enhance the romance in your relationship, you might not think that enough time exists before the wedding to complete the agreement. State law does require that each party take the time to review the agreement and seek the advice of an attorney. If you attempt to execute a prenup too close to the wedding, accusations of coercion or duress could come up in a divorce. If a judge agrees that coercion took place, he or she could invalidate the agreement.
The judge could also invalidate certain provisions that violate current law or public policy, as well. For example, the law does not allow for child custody and child support provisions in a prenup. Furthermore, the most often invalidated provisions of a prenup involve alimony waivers and stipulations. Your financial circumstances will more than likely change as the marriage goes on, and provisions for alimony made when you married might be unfair if a divorce occurs. Judges also tend to invalidate provisions that govern your personal relationship, such as who does the laundry or where any children attend school.
Deciding to enter into a prenuptial agreement requires cooperation from both of you. If you both want to move forward with the process, each of you would benefit from talking to an attorney first. Understanding what legally makes up a prenuptial agreement and what rights you might be waiving ensures that both of you enter into it freely.
