What Can Someone Do To Protect Their Separate Property In New York?

If you’re going into a relationship, it’s not a romantic concept to think about entering into prenuptial agreements. The best protection in New York state to protect your assets before you get married is not to get married. That’s the hard answer to this question. However, I’ve never heard of a pre-nuptial agreement adding to the romance and trust in any relationship. But that’s not the question. If the question is how to absolutely protect any asset from being part of the marital estate, the only sure fire method is to remain unmarried.

No matter how strong a prenuptial agreement is, if that’s what you’re contemplating, not getting married is a solid guarantee that the asset that you have are going to remain separate. Without a marriage license, there cannot be any equitable distribution, since there could never be no marital property outside a bone fide marriage.

The next, but nowhere as certain a level of protection is entering into a prenuptial agreement. A prenuptial agreement should always contain a list of the assets that are looking to be protected; a projection for the future in case of divorce is on the horizon as to what will happen to those assets.

Presenting the notion of a pre nup to your intended spouse is quite natural where a wealthy fiancée, let’s call that person ‘him’, has a boatload of money, (usually family money, but sometimes self-made), and is looking to marry ‘her’ who comes from a humble background and has no family money (or any money). Here, ‘she’ knows it would be ‘normal’ for ‘him’ to insist on a pre nup; his parents certainly will insist. Here’s the first sign of mistrust in a marriage, signing a pre nup before the act.

This pre nup can also contain clauses that talk about potential support, whether that’s spousal support, (what used to be called alimony now called maintenance), or child support. We have to remember that a prenuptial agreement is merely a contract…… a written agreement between two parties. The Husband and the Wife. However, this written agreement is not tied to an order of a court. You cannot get a prenuptial agreement ordered by any court……there is no court case it relates to. At the time the agreement is signed, there is no marriage, only a contemplation of marriage. Therefore, the only time this pre-nuptial agreement will be put before a judge is if a divorce happens and either party insists that the pre nup be upheld.

So, a prenuptial agreement, when it’s going to be presented to a court, would be presented during a divorce. Now you have to question whether or not the terms of that prenuptial agreement were fair when it was entered into and that it wasn’t a matter of duress or undue influence on the party who’s looking to enforce any of the terms of the agreement. Then a Supreme Court Judge would have to determine the validity and the enforceability of that prenuptial agreement.

So when a prenuptial agreement is drafted, it should always be drafted by an attorney and reviewed well in advance of the wedding, with the other represented by a different attorney to ensure that it has the legal substance that a prenuptial agreement would typically entail and require.

When it comes to things like support, especially when it comes to supporting children, you’re getting married, and you don’t have children, and even if you have children and you’re getting married, if you have children together, of course. That prenuptial agreement, when it talks about support, is likely not going to be enforced as it relates to any children, because you can’t take the rights of someone who is not a party to that contract, and any children, living or in the future cannot be a party to this written agreement. For instance, when you talk about one spouse’s needs, does that spouse have conditions that upon divorce are not going to be met, and would that prenuptial agreement be enforceable? I don’t know. That’s a matter of a judge to decide.

I tried three prenuptial cases within the divorces. I won two, and I lost one. But in each case, it was the language of the prenup that won or lost the case, my role was bookkeeper. There was a lot of money involved, which is typical when a prenup is being challenged, or seeking enforcement. These are tricky wickets.

How Do You Recommend People Bring Up The Topic Of A Premarital Agreement With Their Partner?

Every couple is different. In what context does that get raised? How do couples discuss money with each other? It will be an uncomfortable situation for both the future spouse who has the assets and the future spouse who doesn’t have the assets. It doesn’t arise in middle-class or lower socio-economic couples that don’t have the assets because there’s nothing they are looking to protect. The law in New York is that whatever is acquired during the marriage, except for those four exceptions that I mentioned before, will be subject to equitable distribution.

Prenuptial agreements are the anti-Viagra. No good romance ever comes from a prenup. However, it is absolutely expected and possibly needed in most high net worth marriages. Family money must be protected, and if the marriage fails (the majority of Long Island marriages do), the law should apply. Entering into a solid prenup narrows the law and defines rights and obligations. If the marriage works out, the strength or validity of the prenup signed 25 years ago is meaningless. If the marriage fails, the spouse with the money will be so glad a pre nup was signed.

Can A Prenuptial Agreement Be Modified At Any Time Before The Marriage?

Before the marriage, prenuptial agreements can be modified, not so after the marriage because then it’s no longer a prenuptial agreement. All written contracts can be amended, but with prenups, it usually takes the form of a post nuptial agreement, which acts as an ‘amendment’ to the prenup, it changes some of the rules either more narrow or wider.

A prenup must be signed before the marriage. This should always involve lawyers, one for each party, and all of the proper protocols should be adhered to. Be prepared to pay between $5,000 and $10,000 to have one properly drafted and signed The protocol requires the signatures to be notarized with the same formalities that come with the recording a deed in New York state. Typically, two lawyers will be involved in making sure that it sustains the legal basis for what a prenuptial agreement requires.

For more information on Protecting Your Separate Property 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.