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The Complete Guide to Prenuptial & Postnuptial Agreements

What You Need to Know About Prenups & Postnups
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Getting married is both a joyous celebration and a legally binding commitment. It’s important that you don’t lose sight of protecting your rights and interests in the excitement of planning your wedding and finally saying “I do.” A prenuptial or postnuptial agreement can help ensure that your assets and rights are safeguarded in the event of a divorce. While some couples still believe that signing a prenup is “unromantic,” the reality is that it’s simply wise financial planning.

Here’s what you need to know about getting a prenuptial or postnuptial agreement on Long Island.

Prenuptial Agreements Defined

A prenuptial agreement, also called a prenup, is a legally binding contract signed by two individuals prior to their marriage. A prenuptial agreement generally outlines the property, assets, and debts of each person, and may also indicate what each spouse will receive if the marriage ends.

Without a prenup to establish agreed-upon guidelines for distributing property upon divorce, New York state law will dictate how this is done. Under the law, spouses have inherent rights to property and debts. They generally have the right to:

• Equal ownership of property acquired during the marital union that is expected to be divided equitably after divorce or death.
• Assume debt during the marriage that the other spouse bears equal responsibility for.
• Equal control over marital property, which may include the right to give it away or sell it without the knowledge of or agreement from the other spouse.

Although sometimes considered unromantic, prenuptial agreements are gaining traction among Gen X and Millennials. Younger individuals are delaying marriage and pursuing careers. When marriage does occur, each partner often comes into the union with property and assets they want to protect. A prenuptial agreement is a smart financial choice that protects both spouses from losing assets or giving up their equal right to share in property acquired during the marriage.

Postnuptial Agreements Defined

A postnuptial agreement is similar to a prenuptial agreement in that it generally addresses the same core issues, but is entered into after the couple has joined together in civil union or marriage. In the past, postnups were considered unenforceable but became a popular choice in the 1970s as states began to adopt no-fault divorce laws.

The only legal difference between a prenuptial and postnuptial agreement is when the couple enters into the contract. A key difference in how the agreements are drafted, however, is how counsel can be retained. Married couples can usually draft a postnuptial agreement together with the help of a single attorney, while drafting a valid prenuptial agreement requires each spouse to retain their own counsel.

Many couples who decided to forgo a prenuptial agreement to avoid detracting from the romance and excitement of the big day often choose to revisit the idea of legally protecting their assets and rights to shared property once the honeymoon is over. Some couples who change their minds about the terms of their prenups after the wedding may decide to draft a new agreement through a postnup.

A postnuptial agreement can also be used to reduce legal expenses and streamline the process of legally separating or getting a divorce. Within this context, a postnuptial agreement is usually incorporated into the final divorce decree by outlining how property will be divided and if alimony will be paid.

“The only legal difference between a prenuptial and postnuptial agreement is when the couple enters into the contract. A key difference in how the agreements are drafted, however, is how counsel can be retained. Married couples can usually draft a postnuptial agreement together with the help of a single attorney, while drafting a valid prenuptial agreement requires each spouse to retain their own counsel.

Types of Prenuptial & Postnuptial Agreements

There are typically three different types of prenuptial and postnuptial agreements, which may have overlapping features.

What Can Prenups & Postnups Be Used For?

Pre- and postnuptial agreements can be used to:

• Outline terms of spousal support and property division between spouses. This is the most common type of pre- and postnuptial agreement and is used to spell out how individual and shared assets and debts will be distributed in the event of a separation or divorce. This type of agreement includes both assets that each spouse brought into the marriage and shared property acquired during the marriage.

• Waive spousal rights when one passes away. A pre- or postnuptial agreement can also be used to establish guidelines for how the couple’s assets would be distributed in the event of the death of either spouse. A pre- or postnup used in this manner typically supersedes state laws or a will.

• Provide structure to a future separation agreement. A postnup can also be designed to function as a template for a future separation agreement. While child custody and support can be included in a postnuptial agreement, they cannot be included in a prenup. A postnuptial agreement created for this purpose will often reduce the time and expense it can take to move through the divorce process.

Which Is Better: A Pre- or Postnup?

Whether a prenup or postnup is the best choice largely depends on your individual circumstances; neither is clearly advantageous over the other.
Review the pros and cons of prenuptial and postnuptial agreements to get an idea of which might be a good fit for you:

Prenuptial Agreement Pros & Cons

Pros
• Entering into a prenup can alleviate the concern that either spouse is marrying for financial gain.
• Drafting a prenuptial agreement requires a couple to examine their finances, including assets, debts, and income, prior to entering into a legally binding marriage.
• A valid prenup can help your divorce go smoothly in the event it occurs, with less time and cost to go through the process of dissolving your marriage.A prenup can protect the financial interests of children from a previous marriage.

Cons
• Prenuptial agreements may be viewed as unromantic.
• They may cause one spouse to feel as though the other is not completely committed to the marriage.
• Requesting a prenuptial agreement may elicit an argument.
• Poorly drafted prenuptial agreements are often considered invalid and do not provide the protection they were designed to.

Postnuptial Agreement Pros and Cons

Pros
• A postnup can be used to amend a prenup if the original agreement no longer suits a married couple’s needs, or it can provide protection in the event a prenup was never created.
• Couples who plan on divorcing can use a postnuptial agreement to simplify the terms of the divorce.

Cons
• Requesting a postnuptial agreement may make the other spouse feel like the marriage is on the decline.
• It’s often easier for a postnup to be found invalid than a prenup.

 

“Whether a prenup or postnup is the best choice largely depends on your individual circumstances; neither is clearly advantageous over the other.”

What Can Be Included in Pre- and Postnups

What you can and cannot include in a pre- or postnuptial agreement is generally dictated by New York state law. However, some of the most common provisions included in these types of agreements are:
• How assets and property are divided after separation or divorce. This often includes specifics about what will happen with the marital home, who gets to keep which vehicle(s), how liquid assets and investments are divided, and more.
• If one spouse will pay alimony. The details about the amount of spousal support to be paid, when it’s to be paid, and to whom will also be included.
• How debts accrued during the marriage will be divided. This includes the mortgage on the marital home, vehicle loans, credit card debt, medical debts, etc.
• How property and assets will be distributed in the event of one spouse’s death. The agreement may also specify alternative provisions if the divorce process had been started at the time of death.
• Who will get custody of minor child(ren) and if child support will be paid (postnuptial agreements only). How much child support will be paid, when it will be paid, and to whom may also be included in the agreement.

When to Get a Prenuptial or Postnuptial Agreement

Contrary to outdated beliefs, entering into a pre- or postnuptial agreement does not mean that a couple plans to get a divorce at some point or is considering filing for a divorce. Pre- and postnups are often entered into because:
• A couple wants to clearly define what property each spouse is bringing into the marital union and their wishes for what will happen to it.
• One spouse makes significantly more money or has more assets than the other and they want to protect them; alternatively, the lesser-earning spouse may want to ensure they have access to financial support in the future.
• One spouse has children from a previous marriage and wants to protect their inheritance and ensure that assets would be passed on to the children in any event.
• A couple wants to know upfront what the terms of a divorce would be in the event that it were to happen, in addition to speeding up the process and reducing its overall cost.
• One spouse has stopped working to provide care to minor children or to attend school and the couple wants to ensure they will have access to financial resources if a separation or divorce were to occur.
• One spouse has received a large financial gift, such as lottery winnings, a civil suit settlement, or an inheritance.
• One spouse has significant debt and the other spouse wants to be protected from the responsibility of paying it back.

“Contrary to outdated beliefs, entering into a pre- or postnuptial agreement does not mean that a couple plans to get a divorce at some point or is considering filing for a divorce.”

When Not to Get a Pre- or Postnup

Although establishing a pre- or postnuptial agreement is usually in the best interests of both parties entering into a marriage, there may be rare cases where obtaining one would be disadvantageous. For example, you may not want to get a pre- or postnup if:
• There is a significant income gap and you’re the lesser earning spouse. A prenup may be used to limit your access to alimony after a divorce, which can prevent you from regaining your financial independence.
• You were not given enough time to evaluate the agreement. You should be offered enough time to review any legal agreement with your attorney and submit revision requests as necessary until the contract is satisfactory to both parties.
• You feel pressured or coerced into signing. One spouse may put undue pressure on the other to sign an unfair prenuptial or postnuptial agreement quickly before the other can realize that the agreement is heavily in favor of the proposing spouse.
• The pre- or postnuptial agreement heavily favors your spouse or does not provide for your financial security after a separation, divorce, or death.
• New York state property distribution laws are more favorable for you than the proposed terms in your pre- or postnup.
• You and your partner have no plans to increase your wealth, have children, or otherwise add to your assets.
• You have fundamental philosophical or religious beliefs against pre- or postnuptial agreements.
• You’re not ready to be fully transparent about your finances (in which case you may want to consider delaying the legal commitment of marriage).
• You accumulated significant debt during your marriage that you believe your spouse should also be responsible for.

Getting Married? Contact an Experienced Long Island Family Law Attorney

If you’re getting married or were recently wed, it’s critical that you consult with an experienced family lawyer who can advise you on how to legally protect your rights and interests in your new marriage. While you don’t expect to get a divorce, having the security of a legally binding agreement that prevents you from being left with too little after dissolving your marriage is important. Contact Hornberger Verbitsky, P.C. today to schedule your free consultation at 631-923-1910.

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