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Do I Need a Prenuptial Agreement in New York?

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Jacqueline Newman

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Jacqueline Newman

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Jacqueline Newman - Family Law - Super Lawyers

Answered by: Jacqueline Newman


New York, NY
Phone: 212-867-9123
Fax: 212-983-8526

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Marriage is one of the most important decisions you’ll ever make. While you are considering whether to get married at the Mandarin Oriental Hotel with a sweeping view of the New York skyline, trying to pick a dress or find the perfect ring, or finalizing the ever-changing guest list, there is another very important issue to consider: do I need a prenuptial agreement in New York?

Discussing a prenuptial agreement (prenup) with your future spouse is not a romantic topic, but marriage is a legally binding contract between two people that carries both rights and responsibilities. If you have your own business, actively manage your stock accounts, own real estate, are due an inheritance, already own significant property, or simply want to avoid the risks inherent in divorce, a prenup may be right for you.

What Is a Prenuptial Agreement?

A prenup is a contract between two future spouses that spells out the wishes of both people regarding property division, support/alimony, and other issues specific to marriage, in the event of death or divorce. Prenups must be in writing, signed by both spouses in front of a notary public, and finalized in New York before the couple walks down the aisle.

Benefits of a Prenuptial Agreement

Prenups aren’t just for the Upper East Side elite. New Yorkers from all walks of life enter into prenuptial agreements for a variety of reasons, including, but not limited to:

  • If one spouse has more assets (or debts) than the other;
  • If one spouse has a family home or other property he or she wants to keep separate;
  • To facilitate an estate plan and avoid court involvement in deciding property distribution;
  • To protect one spouse’s business or intellectual property rights;
  • To protect the appreciation of actively managed assets;
  • To protect against the uncertainty of the matrimonial laws and courts; or
  • To reduce costly and time-consuming conflicts during a divorce.

Elements of a New York Prenup  

There are a number of matters you can negotiate into a prenuptial agreement. For instance, you can set forth each spouse’s right to property (whether owned individually or as a couple). You can decide each future partner’s right to spousal support. Simply put, there are a number of terms you can write into an agreement, whether it involves real estate, cars, stock portfolios, pensions, or future earnings.

What if We Don’t Have a Prenup in New York?

If you don’t have a prenuptial agreement in New York and decide to get divorced, the court will follow the equitable distribution laws at the time. This means that when a couple divorces, a judge will divide their marital property in the manner that judges sees to be most equitable. This does not necessarily mean equally, however. Depending on the facts of each case, the couple’s assets and debts will be divided in a manner that this judge believes represents each spouse’s contributions to the marriage.

For example, let’s say Ivana owned her New York City brownstone before tying the knot with her husband Donald. The home would belong to Ivana after a divorce. However, if Donald and Ivana renovated the brownstone during their marriage, he could be entitled to a percentage of the appreciation as determined by a judge, unless the couple has a prenuptial agreement that specifies otherwise.

Hire a New York Family Law Super Lawyer

Entering into a prenuptial agreement with your future partner is a very personal decision. Speak to a qualified New York family law attorney today to learn about the pros and cons of such an arrangement and how to draft a legally enforceable agreement to protect your assets.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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