Do you want a divorce court to determine who gets your hard-earned assets should your marriage end in divorce? Of course not. Do you want to support your ex-spouse for years after a divorce? Do you want to see your ex-spouse walk away with part of your business, your pension or 401k, your savings, or your investments? Of course not. If you’re getting married, you should have a prenuptial agreement.
Without one, should you decide to divorce, a New York court will divide the “marital assets” as the court deems equitable. A prenuptial agreement will help ensure that YOU keep what’s YOURS and that your spouse keeps what is theirs. Unfortunately, divorce is far too often a windfall for the spouse with less assets. A prenuptial agreement is a sensitive topic, but it is something that should be discussed.How Does a Prenup Work?
A prenuptial agreement is simply an agreement between two people that spells out how assets are to be divided upon divorce or death. Much like a will, it allows the parties to decide what happens to their assets rather than a court. Without a prenup, a court will usually determine the division of your assets. Discussing this with your fiancé can certainly be uncomfortable, but it is a discussion that must be had.
One of the most important aspects of a prenuptial agreement is the list of each of the party's assets and liabilities. You must make total disclosure of all of your assets and liabilities. One way your spouse might try to void the agreement is by claiming that you didn’t reveal all of your assets when you negotiated and signed the agreement. Make sure this doesn't happen to you by working with a competent lawyer.Hiring Your Own Attorney is Crucial
Equally important is the need for separate representation. Each party needs their own attorney who will represent that party’s interests. Spouses have tried to void prenups by claiming that they didn't have their own representation during the negotiation. In fact, you shouldn’t even show up together at the same attorney’s office. Wife-to-be should have an attorney and husband-to-be should have his own attorney.
You should not use the lawyer you use for your prenuptial agreement as your “family” attorney after you are married. Why? Once the attorney you used for the prenuptial agreement represents both you and your spouse on another matter, that attorney will be disqualified from representing you should you and your spouse seek a divorce down the line. Using another lawyer will help you avoid future complications.Prenups can Help Expedite Your Divorce
It is the public policy of the State of New York that families decide their own affairs. This policy encompasses agreements made by parties prior to their marriage or during their marriage. A prenuptial agreement allows the parties to agree in advance as to how they will resolve issues in the event the marriage terminates.
Such agreements help expedite and streamline the divorce process, and they will not be cast aside lightly. However, to be upheld, the agreement to override the court’s prerogative to divide assets equitably must be clearly set forth in a signed writing evincing the parties' clear intent to deviate from equitable distribution laws.
In New York State, prenuptial agreements and other agreements pertaining to marriage are governed by contract law. A properly executed prenuptial agreement is afforded the same presumption of legality that is attached to any other contract. As with any contract, once a dispute arises, the “contract” will be challenged.Common Grounds for Challenging a Prenup
- The agreement is unconscionable
- The agreement is not clear
- One spouse wasn’t represented
- The agreement was signed under duress
- Not all assets were revealed
The statute of limitations for challenging the validity of a prenuptial agreement is three years from the date process is served (not filed), or from the date that one of the parties dies. Therefore, even if you signed a prenuptial agreement 20 or 25 years earlier, your spouse will have three years from the date you serve him or her with the divorce papers to challenge the validity of the prenuptial agreement.
Contact Tilem & Associates, PC to discuss your options in a free consultation.