New York Prenuptial Agreement Lawyer
Are you planning to get married and want to protect your assets? You might want to consider entering into a NY Prenuptial Agreement with your fiance/fiancee.
A Prenuptial Agreement, also called an Antenuptial Agreement or Premarital Agreement, is a contract between a prospective bride and groom prior to their marriage. Such agreement is effective only upon the parties’ marriage. Entering into a Prenuptial Agreement is the best way of minimizing problems which may arise after marriage and upon a divorce.
In a Prenuptial Agreement, parties may contract to alter their rights as they wish to without being restricted by applicable provisions of law which may limit the exercise of these rights in the event of subsequent dispute between them. Typical provisions include:
- Property rights (whether tangible or intangible)
- Support rights
- Inheritance rights
- Custodial rights
In a typical Prenuptial Agreement, rights with respect to property owned presently and property to be acquired in the future are treated separately. The parties may agree to define property as “separate property” where the statue would define such property as “marital property,” and agree as to distribution of such marital property upon dissolution of their marriage. A Prenuptial Agreement might also include a separate provision for property the parties wish to purchase together in their joint names and share an ownership interest. If after marriage, a residence is purchased by the parties jointly as husband and wife, they will be treated to own this property as tenants by the entirety, which gives each spouse a right of survivor-ship in the event of the death of the other spouse and partition rights on equal 50/50 basis if the marriage is terminated. Also, under the NYS Banking Law, there is a rebuttable presumption that a bank account held in joint names is owned by each person in equal 50/50 basis. Both ownership interests can be altered by a Prenuptial Agreement. For example, the parties may agree that they will take title to any subsequently purchased real property as tenants in common in whatever ownership percentage they may choose or eliminate survivorship rights.
A Prenuptial Agreement can also contain a waiver of estate rights, waiver of pension and retirement accounts, and waiver of temporary and/or permanent maintenance. However, an absolute waiver of any support of spouse in a Prenuptial Agreement may not be valid for all purposes. A spouse my still be responsible for the support of the other if the dependent spouse will become incapable of self-support and become a public charge (receives public assistance) and if the obligor spouse is of sufficient financial means. Further, although a Prenuptial Agreement may contain a waiver of spousal rights to pension and retirement accounts, it may not be valid as to ERISA (Employee Retirement Income Security Act) –qualified retirement plans. Under federal law, only a “spouse” may waive rights to such benefits. Because a Prenuptial Agreement is signed before the parties’ marriage, neither is a “spouse” of the other at such time. However, a Prenuptial Agreement may effectively waive spousal rights in non-ERISA plans such as governmental deferred compensation and pension plans and IRAs.
The parties’ ability to contract in a Prenuptial Agreement as to child custody and visitation is subject to the supervisory role of the court. The parties may agree to confer custody upon one party or agree to joint custody arrangement. However, if the court at the time of divorce, determines that the best interest of the child(ren) requires custody arrangement different from that provided in the Prenuptial Agreement, the court may disregard the agreement.
Last but not least, in order for a Prenuptial Agreement to be valid, the following indispensable ingredients should be incorporated:
1. There must be a full and complete financial disclosure by both parties. If either part conceals any assets or liabilities, a presumption may ensue that there has been a misrepresentation, overreaching, concealment of facts, or other forms of deception. As such, a schedule of assets and liabilities should always be appended to the agreement.
2. A Prenuptial Agreement should be signed by each party with sufficient time to contemplate its full import. Thus, it should be executed well in advance of the anticipated wedding such as weeks or month prior to marriage. If a Prenuptial Agreement is entered into right before the marriage, especially if there were any wedding ceremony arrangements made, a presumption may ensue that it was signed under duress (person was forced to sign the agreement)
3. A Prenuptial Agreement must be acknowledged by each party, which means that it must be executed just like a house deed, in front of a notary public. Absence of acknowledgement of the parties’ signatures by a notary public is a fatal defect. The reason why an acknowledgment of parties’ signatures is an indispensable requirement is because it is essential in order for the agreement to constitute an “opting out” agreement under DRL Sec. 236 Part B (3), whereby the parties by agreement may alter the plan of equitable distribution of marital property that would otherwise be applicable in the event of divorce.
4. Each party should be separately represented by an attorney of that person’s own selection.
5. A Prenuptial Agreement should be fair and reasonable without overreaching of one party by the other. When a court is called upon to enforce a Prenuptial Agreement, it will strictly scrutinize the fairness of the agreement particularly analyzing whether the terms of such agreement are unconscionable as applied to the party who was at a disadvantage when the agreement was signed.
Please contact us our New York Prenuptial Attorneys for a free consultation to discuss prenuptial antenuptial agreements. We can be reached at (212) 300-5196.