Many couples choose to prepare and sign a prenuptial agreement before marriage. The legally binding contract outlines how assets, debts, and other important issues will be handled in the event of a divorce or separation.
In New York, prenuptial agreements are useful for protecting assets, ensuring clear financial boundaries, and addressing potential concerns. A prenup can provide peace of mind and clarity for both parties involved.
Knowing the key questions you should ask your attorney is helpful if you're considering a prenuptial agreement. Here are 25 frequently asked questions with brief answers to help you navigate the prenup process.
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Do divorcing couples who agree on the division of assets still need a prenup?
A prenup is necessary because it provides legal clarity and protection, ensuring that both parties are on the same page about asset division. Without a prenup, New York's default laws will apply in the event of a divorce, which may not align with your wishes. A prenup can ensure a fair, agreed-upon division of assets and prevent potential disputes.
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What assets does a prenuptial agreement divide?
A prenuptial agreement can divide a range of assets, including real estate, bank accounts, retirement accounts, business interests, and personal property. Importantly, the prenup identifies separate property (property you bring into the marriage or acquire individually during the marriage, including inheritance, gifts, or personal injury settlements).
Separate property is not divided in divorce. Instead, the agreement will focus on marital property (property acquired during the marriage). Marital property may include property held in your individual name or earned by you alone. The prenup will detail how that property will be divided should you divorce.
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Does a prenup specify how assets and debts will be divided in detail?
A prenup can specify exactly how assets will be divided. The agreement can also set rules for handling debts incurred during the marriage. Couples can create specific categories and even mention specific items.
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How enforceable is a New York prenup?
New York courts generally enforce prenuptial agreements, provided they meet certain legal criteria. The agreement must be voluntary, made with full disclosure of assets and debts, and signed by both parties with no coercion. Both parties must also have the opportunity to consult separate legal counsel before signing.
The court will not uphold a prenup that is found to be unconscionable, signed under duress, or fraudulent in its creation or signing.
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How can I ensure my children from a previous marriage are financially protected?
Your prenuptial agreement can establish how you will handle estate planning. For example, you can make your child your beneficiary instead of your spouse. The prenup can establish inheritances for your children that cannot be changed later. The agreement can also specify support amounts that must be paid for minor children from a previous relationship.
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Can a prenup ensure family heirlooms are passed down to children?
Yes, a prenuptial agreement can expressly state that family heirlooms or valuable items should remain with one spouse or be passed down to children, either upon divorce or death.
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Can a prenuptial agreement establish alimony?
A prenup can address spousal maintenance (alimony), outlining whether or not one spouse will be entitled to support in the event of a divorce. It can also set the terms of spousal support, such as the amount, duration, or any conditions for payment.
For example, the agreement can establish a scaling amount corresponding to the marriage years. Spousal support can also be linked to the number of children in the marriage and various other factors.
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Should prenups include child custody arrangements?
In New York State, you can include a section about child custody, but the agreement cannot be definitive on this issue. In general, child custody and visitation arrangements cannot be predetermined in a prenuptial agreement. These decisions are based on the child's best interests at the time of divorce and cannot be preemptively decided.
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Should we specify child support payments in our prenup?
As with child custody, the court must determine child support payments in New York at the time of the divorce to ensure they are in the children's best interest and meet the state standards requirements.
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Should we include lifestyle requirements and responsibilities in a prenup?
Prenups typically focus on financial matters and assets. While you can include lifestyle clauses (such as how finances will be managed or how specific responsibilities will be shared), it's important to remember that a prenup is primarily a financial agreement.
For example, provisions in prenuptial agreements that specify things like taking out the trash, paying the bills, sexual performance, weight maintenance, or how many vacations you will take together per year are not enforceable and should not be included. Seeing a therapist is often the best way to work through those kinds of marital issues.
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Can a prenup cover custody of our pets?
Yes, a prenup can specify who will retain ownership of any pets in the event of a divorce. As pets are considered property in New York, you can treat them as assets and determine who will keep them, just as you would with any other possession.
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Do I have to report all of my assets or debts in a prenup?
Yes, full disclosure of assets and debts is required for a prenuptial agreement to be enforceable. If one spouse hides assets or fails to disclose debts during negotiation, the agreement could be challenged in court.
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Can we sign a prenup after we get married?
Yes, signing a prenuptial agreement after marriage is possible, but this would be known as a postnuptial agreement. A postnup works similarly to a prenup, except that it is signed after the marriage has taken place.
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Can we modify our prenuptial agreement after we sign it?
Yes, couples can modify prenuptial agreements after signing if both parties understand and agree to the changes. You can modify your prenuptial agreement by creating another prenuptial agreement that revokes the first one. You can also create a postnuptial agreement after your marriage, which revokes or alters the terms of your prenuptial agreement.
As your financial situation and marriage change, you can create as many later agreements as you wish to modify the prenuptial agreement. Any modifications must be in writing and signed by both spouses. It's important to consult an attorney when making changes to ensure the revised agreement is enforceable.
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What if my future spouse does not want to sign a prenup?
Both parties must agree to a prenuptial agreement. If your future spouse does not wish to sign it, you cannot force them to. Any contract signed under duress or threat is unenforceable.
If your future spouse is unwilling to sign a prenuptial agreement, discuss their concerns openly. Sometimes, resistance stems from misunderstandings or fears that can be addressed through discussion. If they disagree with the prenup as written, you can negotiate until you can get to something you both feel comfortable signing.
If they still refuse, you can choose to proceed with the marriage without a prenup, or you may reconsider whether marriage is the right decision.
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How much time before the wedding should we sign a prenup?
Signing a prenuptial agreement at least a few weeks before the wedding is advisable. Signing too close to the wedding date can raise concerns of coercion or duress, which might affect the agreement's enforceability.
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Can a prenup protect me from my spouse's debts?
A prenuptial agreement can state that one spouse is not responsible for the other's debts. This is particularly important if one spouse has significant liabilities or debts they wish to keep separate.
However, the court may ultimately decide whether a debt is considered marital or separate property at the time of divorce. If a spouse is found to have contributed to the debt, the prenup terms may not be enforceable.
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Can a prenup be used to protect a business?
Yes, if one spouse owns a business, a prenup can protect the business in divorce. The prenup can specify that the business remains the owner's separate property and is not subject to division as marital property.
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Can a prenup address how we will handle our finances during the marriage?
While prenuptial agreements primarily address asset division in the event of divorce, they can also describe how the couple will manage finances during the marriage. For example, you could agree on keeping joint or separate bank accounts or planning for your children's college expenses.
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What if one spouse doesn't fully understand the prenup?
It could be invalidated if one spouse doesn't fully understand the prenup. Both parties must comprehend the terms and consequences before signing. It's highly recommended that both spouses consult independent legal counsel to ensure they understand the agreement.
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Will a judge ever disregard a prenuptial agreement?
In some cases, a judge may disregard a prenup if it is deemed unfair, signed under duress, or contains provisions against public policy. For example, provisions regarding child custody or support that don't align with the child's best interests may be disregarded.
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Can the prenup include a "no contest" clause?
A "no contest" clause can be included, meaning that if one spouse challenges the prenup in court without valid grounds, they may lose their right to receive any benefits from the agreement. However, these clauses are not always enforceable, especially if the challenge is based on legitimate grounds.
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Can the prenup specify the terms of our separation?
Yes, a prenuptial agreement can outline the terms of separation, including how property will be divided and how spousal support will be handled. This can prevent disputes and make the divorce process smoother.
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How do we ensure the prenup is fair?
Both spouses should provide full financial disclosure and ideally have separate legal representation to ensure fairness.
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Can a prenup address future inheritance?
Yes, a prenuptial agreement can address how future inheritances will be treated. For example, one spouse may wish to keep any inheritance they receive separate from marital assets. The prenup can specify this to avoid confusion later.
Creating a prenuptial agreement can be an excellent way to protect your assets and ensure clear financial arrangements for your marriage. Understanding the key questions to ask your attorney can help you navigate this process and create an agreement that aligns with your needs.