A Guide to Prenuptial Agreements In
A Divorce Lawyer's Guide
Why Prenuptial Agreements are Important?
In recent years the divorce rates in New York have gone up, couples face an approximate 50% chance of divorce. A divorce can place a toll on your financial well-being -- especially if you the higher earning spouse known as the "monied spouse."
The average length of a marriage in the U.S. is eight years; however, in recent years the divorce rate has increased. The divorce rate increased exponentially after the covid pandemic. This has been attributed to extended time at home, a lack of outlets (due to recreational facilities being closed), and added stress.
A prenuptial agreement will dictate how your property is distributed in the event of divorce or death of a spouse, and if if drafted properly — can be a powerful tool to protect your assets!
Full Disclosure is Required in a Prenuptial Agreement -- Don't Skip This Step.
A prenuptial agreement must be signed prior to marriage and give each spouse reasonable time to review the agreement, including obtaining the advise of counsel. Prior to signing a prenuptial agreement, full disclosure is required. This means all of your assets and debts must be disclosed, so that your future spouse has full disclosure. If you leave out assets or debt it can invalidate the prenuptial agreement. If done correctly, a prenuptial agreement can be a powerful tool to safeguard for finances in the event of a divorce.
A Prenuptial Agreement Can Be A Powerful Tool to Safeguard Your Finances in the Event of a Divorce!
Full disclosure is an absolute requirement for an enforceable prenuptial agreement — don’t skip this step. If you do the agreement will likely be invalidated.
What Can You Agree to in a Prenuptial Agreement?
New York has a strong public policy that provides broad flexibility for drafting prenuptial agreements. Couples can agree to a wide variety of provisions, such as, waiving temporary spousal support, waiving post-divorce maintenance (commonly called “alimony” in other states), waiving appreciation on real estate, waiving pension and retirement account contributions, and keeping many other assets separate property. Furthermore, the agreement can make each spouse responsible for their own debt. This can afford substantial protection to a spouse in the event of a divorce.
There are certain items you cannot agree to because these issues must be determined by a court. For example, you cannot waive child support, as this is required by New York law. You cannot make custody arrangement or visitation arrangement, as these issues require court approval. You cannot agree to anything that would cause a divorce, or anything that is illegal. Finally, the agreement cannot be unconscionable.
A prenuptial agreement must be in writing and notarized. In addition, provisions must be drafted carefully to be enforceable. You should have an experienced Family Law attorney draft your agreement — otherwise you run the risk of it being unenforceable.
New York Law Affords Broad Flexibility for Provisions in Prenuptial Agreements! But it Must Be Drafted Carefully.
An Experienced Family Law Attorney Should Be Consulted.
What You Need to do After The Prenuptial Agreement is Signed.
After signing the agreement it is important to keep your property separate from your spouse. That means using separate bank accounts, not co-signing on loans with your spouse, and keeping your finances separate. If you commingle funds (mix funds together), the prenuptial agreement could be invalidated.
If you are not sure about a financial arrangement, seek the advise of a Divorce and Family Law attorney.
Solomos & Storms, PLLC
Here are some things that can go wrong…
Leaving out provisions in a prenuptial agreement, using improper or vague language, failing to disclose all assets prior to signing, failing to allow a spouse a reasonable opportunity to review the agreement, failing to allow a spouse to have their own separate attorney review the agreement, commingling assets during the marriage, failing to notarize the agreement, and having unconscionable provisions. Trying to do this alone is a “fool’s errand” -- you should seek the advise of an experienced Divorce Lawyer & Family Law Attorney to assist you draft your prenuptial agreement.
Selecting an Attorney to Draft Your Agreement -- Do Your Homework!
Look at their website. Does it show that the lawyer is experienced in Family Law and Divorce Law? This should be a priority. Make sure you look up the attorney on Google and read their reviews. Read ALL of them. The Good, The Bad, and The Ugly. See what others are saying about the lawyer’s experience in Family Law and Divorce Court, and their attitudes towards their clients. Do the reviews sound like their clients were respected? Treated well? Do the reviews say the attorney answers phone calls and respond to clients? This is a common complaint. You will be surprised how may attorneys don't return phone calls.
The First BIG test, the Phone Call
After you’ve checked out the website and reviews, give the attorney a call. This is the first BIG test. How long does it take to get a competent attorney on the phone to speak to you? If it takes more than 2 hours, consider calling someone else. The reason I say this is because a lawyer may tell you anything on their website or in an email, but why not wait and see how long it takes them to respond to your phone call? Is the lawyer friendly or a grouch? Can the lawyer answer questions immediately? The way they act now, before you hire them, is a foreshadowing of things to come. If it takes the lawyer more than 2 hours to respond to your voice mail or email, you can expect the same treatment after you hire them – not good!
Next Thing: Price. How Much is it Going to Cost You?
Tread lightly here, because price is a touchy area. Some people may look for the lowest price, thinking all prenuptial agreements are the same. They are not! They are as different as the couples getting them. You should request a custom agreement, not a boilerplate form off the shelf. Depending on the amount of assets at issue, the agreement will need to be more complex -- never use a boilerplate form off the internet!
Also, keep in mind, the quality of a lawyer- and what they can do for you, varies from law firm to law firm. You will probably pay more for an attorney who specializes in divorce and family law, but will likely be worth the price. In many ways a prenuptial agreement is like an insurance contract -- it better be legally sufficient when you need it to protect you!
Finally; The Agreement.
The Prenuptial Agreement should be well-drafted. It should be clear and unambiguous. You don't want to have to litigate to interpret the contract. All the issues should be addressed, such as current assets, pre-marital debt, post-marital debt, spousal support, maintenance, real estate, pension and retirement accounts, stocks, bank accounts, and other issues you may have. Again, seek out an experienced Family Law Attorney to make sure the agreement is drafted properly.
Contact Queens & Nassau Divorce Lawyers and Family Lawyers for assistance with your prenuptial agreement.