The prenuptial agreement's popularity is on the rise, and for good reason. A prenup is designed to protect the finances and assets of both spouses in the event of a divorce or legal separation. Once considered to be taboo, couples are now embracing the trend and are making the prenuptial agreement part of their wedding planning to-do list.
Divorce without a Prenuptial Agreement
New York State considers all earnings, assets, or property acquired during a marriage to be joint property. This means that both spouses have the right to claim an equal portion of the assets in the event of a divorce or legal separation. To avoid a devastating financial hardship, it is highly recommended that you sign a prenuptial agreement before you are married. A prenup will outline how premarital and marital assets are to be defined and divided. Additionally, it can address any issues surrounding future inheritances, or stipulations regarding divorce. Divorcing without a prenup can be financially and emotionally debilitating. Planning ahead and signing a prenuptial agreement can help alleviate some of the burden of divorce.
How Can I Get a Prenuptial Agreement?
While there are many do-it-yourself prenup services and forms online, it is highly recommended that couples retain separate counsel to oversee the drafting process. New York state law requires each spouse have an attorney review the agreement prior to signing, and that all signatures be notarized in order for the prenup to be considered valid. Prenuptial agreements do not need to be filed with the courts.
Valid vs. Invalid Prenuptial Agreements
In order for a prenuptial agreement to be valid, it must meet the following criteria:
- Both spouses must retain separate and independent counsel;
- All assets and liabilities must be disclosed;
- The agreement must be completed no less than 30 days before the wedding;
- All legal formalities must be followed, including:
- The prenup must be in writing, signed by both parties and acknowledged in the same manner as a deed; and
- The prenup must not be "unconscionable or unreasonable"
There are instances in which a prenuptial agreement can be deemed invalid. If one of the
Following conditions is met, a judge may "throw out" the agreement during a divorce proceeding:
- The agreement is likely to promote divorce
- The agreement was written/signed with the intention of divorcing
- One party was forced into signing or the document was signed less than 30 days before the wedding
- The agreement was created unfairly and greatly favored one spouse over the other
- One party did not fully disclose his or her assets
Postnuptial agreements are composed and signed after a couple is already married. Postnuptial agreements are usually created to modify a prenup, but a prenup is not a prerequisite for a postnuptial agreement. These agreements hold the same purpose as a prenup, and can also be deemed valid or invalid depending on the circumstances in which they were signed. For example, a couple who did not sign a prenup before marriage, but has since acquired financial or physical assets, may decide that it is necessary to seek a postnuptial agreement. Agreements signed after marriage are just as legally binding as those that are finalized prior to a legal union.
The Prenuptial Agreement Experts
The top- rated New York City law firm of Brian D. Perskin & Associates, P.C. routinely executes iron-clad prenuptial and postnuptial agreements. From traditional agreements to highly detailed and specific arrangements, our team can do it all. With a highly capable staff, and years of experience, Brian D. Perskin & Associates can help you create your prenuptial or postnuptial agreement today! Call 718-875-7584 for an in-depth analysis.