Because all litigation is dangerous. There are way too many factors to properly answer that question without knowing the facts. I had 3 prenup trials. Two were enforced, one was not. Here are some examples:
For instance, I own a home before marriage, and I sign a prenup with my fiancé who has a college degree and works in a $50,000 office job. That house is all mine, pre nup or no pre nup. The law says anything you own and bring into the marriage remains yours, like this house.
But without a prenup, 100% of the money I pay the mortgage down with is considered marital, since that income was earned while am married. In this case, a prenup might state specifically, that all the principle pay down remains mine, although paid down with marital income.
Now, without a prenuptial agreement, even if the wife helps to pay the mortgage, she will not be entitled to that house. She might be entitled to something that was contributed during the marriage for the paydown of the mortgage but not necessarily going to enjoy any increase in the value of the house because that is market forces. Market forces are not something that’s actively inserted into the rise in the value of the home. But now, let’s say that house gets an addition added to it. A dormer, an apartment, extensive landscaping, a pool. Those additions are of a marital nature, since they were ‘acquired’ during the marriage, and paid for with marital money. Without a pre nup, the wife is entitled to half the increase in value those additions or improvements created, something a judge will have to determine.
The theory is that marital money, money acquired by one or both spouses while working, went into improving that real property. Remember, that contract is just a contract between two people. Even though it’s a prenuptial agreement that passed all of the requirements of what a prenuptial agreement must pass to be enforceable, it doesn’t necessarily mean that the fairness aspect of that is going to be treated in the same manner as if it were fair. So if it’s not fair, what is a judge going to do if presented with this issue?
The law of New York says that if you take a premarital asset like a house owned and add an extension to the house, that’s something acquired during the marriage. But now you put in work to it, you add an extension done through the marriage with marital money, and that’s not going to be normally included as separate property. So, now a judge has to decide whether or not that has been transmuted or a portion of the house, with the money put in transmuted into a marital share of it. So, you may have a portion of the house that’s determined to be marital and a portion of the house that would likely be the most significant part of it that will be non-marital.
Let’s say when you get married with a stock portfolio, and that account is worth $100,000. Now, suppose every Sunday for twenty years, the couple sat together, and they went over the choices and sectors and made strategies as to what to do to invest in that stock, and the wife was actively involved in making those decisions.
If she helped roll that into a million dollars, her contribution would be considered to be active. You take part of your day, and you spend it assisting in the growth of an asset, if you are successful, you should be entitled to a portion of the growth. That’s only fair.
In this example, even though it was completely his account he owned before the marriage, her active participation in managing that stock portfolio will likely grant her a portion of the growth of that otherwise separate property stock portfolio. So is it fair that she shares an asset that he brought into the marriage with him that she had no part in actively contributing to?
It’s a separate piece of property, whether it’s real property or a stock portfolio. If she didn’t do anything to actively grow that asset, it’s likely to be treated as separate property, and she will not receive any money through equitable distribution.
How Can A Post-Nuptial Agreement Be Used To Protect Separate Property In The Event Of A Divorce In New York? Can That Be Established At Any Point During The Marriage?
A postnuptial agreement can be entered at any point in the marriage. It follows the same rules as a prenuptial agreement protocol, except that it’s done after the wedding. For example, it may be a case where the husband will become a partner in a business of his family, and he wants to protect that in the event of a divorce. The same problem exists with a postnuptial agreement that existed with a prenuptial agreement in that it can’t be interpreted for enforceability unless and until a divorce is looming. Before a summons in a divorce is filed with the Court, there’s nothing that a judge is going to have any touch with on that contract unless and until he is asked to interpret it through a case that’s filed with the court.
So, you’re not going to have a case where one of the spouses brings on a breach-of-contract case, as you would on a regular contract in a civil litigation. In a marital situation, that’s only going to be brought up to a judge in the event of a divorce. So, for example, the fact that a contract is entered into with all of the necessary protocols with it being signed and notarized and in proper form doesn’t mean that the terms of that contract are enforceable. It is all fact sensitive, and each case will have to be decided on an individual basis. I encourage anyone reading this to email me with the specific facts, and I’ll be glad to render my humble opinion, no charge.
You can enter into the agreement in writing, but it doesn’t mean it will be enforceable because greater forces overlay any contractual obligations that people may have with each other. So, for example, it has to conform with the country’s laws that you can’t have somebody be required to do something illegal or against public policy that says that robbing banks is not something that you can do. So with a postnuptial agreement, just like a prenuptial agreement, it’s always going to have a potential problem of, “is it enforceable in a court of law”. You only find out when the Judge tells you during a trial.
For more information on Prenuptial & Postnuptial Agreements In NY, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (631) 462-3100 today.
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