Many people contemplating marriage wonder if a prenuptial agreement (or “prenup”) is right for them. These questions often go unanswered because people are hesitant to raise an unfamiliar and potentially difficult subject with their significant other, especially during their engagement.
While prenups are certainly not necessary for all couples, they can be quite helpful for many.
Surprisingly, the discussions around a prenup can clarify each person’s expectations coming into the marriage, and thus lead to a more harmonious marriage over the long-term. Understanding the basics of prenups can help you judge whether one might be useful in your circumstances.
WHAT IS A PRENUPTIAL AGREEMENT?
A prenuptial agreement (or “prenup”) is a written contract between two people who intend to get married. It typically addresses how financial matters will be handled upon the occurrence of certain events, particularly upon the spouses’ separation or divorce, or one spouse’s death. A postnuptial agreement (or “postnup”) is essentially the same thing, but the agreement is between two people who have already been married.
WHAT CAN A PRENUP DO?
Prenuptial agreements will often do one or more of the following:
- Determine how property acquired before or during the marriage will be divided in the event of separation or divorce;
- Determine the possibility of spousal support (alimony) payments in the event of separation or divorce;
- Address the allocation of a spouse’s estate, when one spouse dies.
Prenuptial agreements are generally not enforceable with regard to child custody or parenting plans. That’s because courts always retain an interest in and power over how children are cared for and raised. If one or both parents disagrees with the custody or parenting plans they agreed to in their prenup, they can appeal to the court, and the court will do whatever it finds to be in the child(ren)’s best interests.
WHO BENEFITS FROM A PRENUP?
Ultimately, a prenup, like any agreement, should do something for both people signing it, not just protect the interests of one person over the other. This critical element is missing in many prenups and, where missing, can leave one or both spouses feeling marginalized or taken advantage of. Not a solid foundation on which to build a life together. A good prenup does not feel like a lopsided “win” (or loss) for either spouse. It represents a thoughtful compromise that considers both spouses’ present and future circumstances, and the concerns and priorities that each brings to the table.
CONTACT US FOR ASSISTANCE
If you and your fiance are considering a prenuptial agreement in New York, and you would like assistance with that process – be it in a mediation, Collaborative Law or assisted negotiation setting – contact our offices at (914) 738-7765 to set up a consultation with one of our experienced prenup attorneys.