As a Family Law Attorney practicing in Nassau County and Suffolk County, Long Island, I have seen as more and more couples wait until they are more established in their careers before marrying, and the increase in second or even third marriages, the number of couples looking to have pre-nuptial agreements has also increased.
What is a Prenuptial Agreement on Long Island?
A prenuptial agreement, or ante nuptial agreement as it is called in New York State Law, is a contract agreement between two individuals prior to the marriage that describes the legal rights of the parties upon divorce or the death of one of the parties. This type of agreement commonly addresses issues of division of property as well as spousal or child support in order to avoid disagreement or litigation if divorce were to occur in the future. Prenuptial agreements are tailored to suit each couple’s unique needs, and provide protection to those entering a marriage contract on Long Island.
Prenuptial agreements can establish each spouse’s right to property, assets, and debts in the event of death or divorce, the right of each spouse to buy, sell, lease, or otherwise control property during the marriage, and each spouse’s right to spousal support or death benefits.
Why Get a Prenuptial Agreement?”
Couples might wish to sign a prenuptial agreement in order to clarify their rights and expectations prior to entering the marriage. As many people on Long Island now wait until a relatively older age to marry, individuals in Nassau County or Suffolk County going into a marriage may have accumulated more income and assets that they wish to protect than we have seen in the past. For individuals marrying for a second or third time, the importance of a prenuptial agreement may be paramount to ensure their future financial security in case of a divorce.
Prenuptial Agreements Can Change the Outcome of Equitable Distribution on Long Island
Couples signing a prenuptial agreement should understand that their divorce may be governed by this document, and, so long as the contract was skillfully drafted and properly executed (the document must be in writing, signed, and properly executed in front of notary public in order to be valid), they will no longer be subject to the New York’s Equitable Distribution laws. Under the Equitable Distribution law, marital property is divided based upon what a Long Island court may see as equitable, and may entitle a spouse to a far greater share of marital property than that provided by a prenuptial agreement.
Prenuptial Agreements Can Protect Your Inheritance
A prenuptial agreement may also provide for a spouse’s right to inheritance upon the death of her spouse. The rights of inheritance imparted by a prenuptial agreement can differ from the law of the state. Under New York Law, if a spouse dies without a prenuptial agreement governing the inheritance, the surviving spouse will be entitled to anywhere between $50,000 up to one half of the decedent’s estate, regardless of what the decedent spouse’s will says. This is known as the elective share. However, if a valid prenuptial agreement has been signed, the agreement will preempt the elective share law, and the surviving spouse will be entitled to whatever terms to which she agreed prior to the marriage. In many cases, a less wealthy spouse will receive less under a prenuptial agreement than she would under the New York State Laws governing divorce and inheritance.
Prenuptial Agreements Don’t Circumvent the Law on Long Island
There are some situations upon which a prenuptial agreement may be invalidated. For example, if a person deliberately hides assets in order to induce a spouse into agreeing to a low level of support under a prenuptial agreement, a court may declare the agreement invalid. If a spouse was unduly pressured or coerced into signing the agreement, it may also be invalid. For example, if a prenuptial agreement is presented to a spouse on the day before the wedding, a court might determine that the agreement was signed under duress and is therefore invalid.
Prenuptial Agreements & Child Custody, Visitation in Nassau County and Suffolk County
Insofar as a prenuptial agreement can govern child custody and visitation, that portion of the agreement is valid only if the couple already had children at the time that the agreement was signed. Otherwise, it is not valid in this regard. Even if the couple had children prior to marriage, a judge will make the final decisions regarding custody and support to ensure that the best interests of the child are protected.
Couples are given freedom to create the terms of the prenuptial agreement in any way that they feel is best suited for their personal circumstances. For example, the law does not mandate that a prenuptial agreement provide spousal support. Courts in Nassau County and Suffolk County will honor the private agreements so far as its covenants are legal; a court will not honor the agreement if it requires a spouse to commit a crime, condone domestic violence, or prevent a spouse from prosecuting a crime.
Experienced Long Island Family Law Attorney Recommends you Ensure Your Prenuptial Agreement Protects You & Is Enforceable on Long Island
It is important that both parties to a prenuptial agreement in Nassau or Suffolk County on Long Island seek the advice of an experienced Family Law attorney. The Law Offices of Robert E. Hornberger, P.C. can assist you in navigating the process of entering into a prenuptial agreement, ensure your rights are protected and ensure that the agreement can be legally enforced in the future. Contact us at 631-923-1910 or fill out the short form on this page and we’ll get right back to you to set up a free consultation to discuss your needs.
For more information about Prenuptial and Postnuptial Agreements, please read Your Guide to Long Island Prenuptial & Postnuptial Agreements
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