Although prenuptial agreements aren’t nearly as pleasant to think about as wedding cakes or dresses, thinking financially and not emotionally, results in the preferred possible outcome and sets up a protected bedrock for your future as an independent single man/woman, in the event of divorce. A prenuptial agreement can secure each spouse’s premarital assets and future financial interests.

A prenuptial agreement is a contract a couple signs before getting married, which may cover: property acquired before the marriage, assets, a business, a home, bill paying, income, estate planning in the event of death, divorce or disability, etc. The problem when couples get married without a prenup is that assets become so co-mingled that you can no longer ascertain what is yours, your spouse’s, and what is joint property.

Some common misunderstandings about prenups are the notions that prenups are “just for wealthy people,” that they promote feelings of distrust and lack of love, alter the whole connection and contract of a marriage, or that a prenup means you are preparing for a divorce.

Contrary to the popular beliefs, prenups can be advantageous for any individuals who bring personal or business assets to the marriage. On the contrary, prenups promote trust, as they ensure that your future spouse is not marrying you for your financial assets. Signing a prenup does not mean you are preparing for a divorce – it is simply a smart way to insure your financial future in the event things don’t go as planned.

Prenups help couples secure a financial safety net, allow them to decide on what property and how much of it belongs to whom, protect the assets of a party with a higher financial worth than their spouse, helps couples avoid surprises, arguments, and enormous costs of possible litigation proceedings.

The value of considering a prenup is to clarify things so that you avoid headache, confusion, and ultimately expense down the road. You must protect yourself during what can be one of the most heart-breaking and stressful occurrences in your life.

A post-nuptial agreement is essentially a pre-nuptial agreement signed after a marriage has already taken place. In essence, a couple may decide at some point during their marriage that they want to amicably divide their assets in case of divorce. A post-nup can also be used to assist the couple in improving and preserving their marriage, in cases of career change, inheritance, or childbirth and adoption.

When considering signing a prenuptial agreement, there are a few important items to consider. Enforceability is a key element in any contract and should not be overlooked when signing a prenuptial agreement. It is one thing to sign a prenup, but in reality, a prenup only matters once you and your partner decide to petition the court for a divorce.  Therefore, the prenup must be enforceable in order to be used as the primary document which will guide the court and/or the couple as to how to distribute their assets, receive and/or pay spousal maintenance, and repay joint debt.

When signing a New York prenup, it is important to consider some pivotal factors when it comes to enforceability.

A New York Prenup should be signed well before the wedding date/marriage ceremony

Just as is with any contract, in order to be enforceable, a prenuptial agreement in New York must be signed knowingly, voluntarily and of a party’s own free will.  The circumstances surrounding the negotiation and signing of a prenup in New York need to be free from any pressure, duress, or coercion. Although New York law does not specify an exact amount of days to wait before a New York prenup must be signed, it might create an appearance of coercion or duress if a prenup is signed too close to the date of the wedding/marriage ceremony.

Both parties signing a prenuptial agreement in New York should be represented by legal counsel 

It is typically the monied spouse who will hire an attorney to draft and negotiate the prenuptial agreement with their future spouse. Although not required, it is highly advisable for both sides to be represented by counsel. In cases where the less-monied spouse is unrepresented, that spouse might be at a significant disadvantage as they might not know or understand what they would be entitled to under the New York law if they had not signed the prenup. If both parties are represented by counsel, the prenup will be seen as more enforceable as neither party can claim that the agreement was not negotiated or that they did not understand the document which they were signing.

A New York Prenup must be Fair and Reasonable    

In order to be enforceable, an NYC Prenup must be seen as being fair and reasonable to both parties at the time of its making and cannot be found unconscionable at the time the final judgment is entered. For instance, it might be considered unconscionable, if a non-monied spouse would waive all spousal support while marrying a significantly wealthy party.

Child Custody and Child Support are Generally Not Enforceable in New York Prenups

Judges tend to make final determinations regarding child support and child custody based on the child’s best interests. it’s hard to predict what will be in the best interests of the child/children at the time of a potential divorce. Therefore, the issues of child support and child custody are best addressed in a Stipulation of Settlement or a Separation agreement entered into prior to filing for a divorce.

For legal advice and expert assistance with drafting and negotiating a New York Prenuptial or a New York Postnup, contact the Law Offices of Inna Vernikov at (212) 729-3497.