A prenuptial agreement (sometimes referred to as a “prenup”) is a written contract or agreement entered into by a couple before marriage. A prenuptial agreement will allow you and your partner to avoid costly litigation by pre-determining how specific assets and debts are to be divided as well as determining how much support, if any, is to be awarded to a less monied spouse. Most importantly, a prenuptial agreement can preserve the legal nature of separate property. In other words, separate property can remain separate, instead of being subject to equitable distribution laws that otherwise require the division of marital assets such as real estate, business interests, retirement accounts, and bank accounts. Without a prenup, you’ll be taking your chances with the courts.
Frequently Asked Questions
Prenups aren’t just for the wealthy - they’re for anyone who wants to protect themselves against the potential financial fallout from a divorce. A prenup will not only protect the assets you have now but also all of your future potential earnings and financial interests.
There are many reasons you may want to protect your future assets. You may be in college or graduate school and anticipate earning a higher income over your lifetime. You may be starting a business and expect to see real growth and expansion over the course of the marriage. That includes appreciating values of your retirement accounts, savings, investments, business ventures, and real estate.
A prenup will protect these assets in the event you’re faced with separation or divorce. If you plan to build your finances and want to make sure they remain your separate property in the event of a divorce or separation, then a prenuptial agreement is the best way to protect your future.
A prenuptial agreement is a legal document that may not be signed under duress or under pressurized circumstances, for example, on the day of the wedding. Nor may a prenup be signed absent reasonable terms and a reasonable period for both parties to review and contemplate its provisions. Therefore, it's best to start the process as early as possible. We recommend having the prenuptial agreement finalized and signed no less than 30 days prior to your wedding day.
There are several steps involved in completing and executing your prenuptial agreement and the process may take several weeks to finalize. To avoid the stress that may come from planning a wedding, and to ensure that your prenuptial agreement will be upheld by a court in the future (as fair and reasonable when executed) we highly recommend beginning the preparation of your agreement at least two to three months in advance of your wedding day.
Generally, you do not need a prenuptial agreement to protect inherited assets from equitable distribution. New York law deems inherited assets to be separate property as long as they are not commingled with marital assets. However, using a prenuptial agreement to identify your inheritance as separate property will provide further asset protection and ensure that even if you commingle inherited assets during the marriage you will not change the legal nature and designation of your separate property.
In New York State, the law provides for the “equitable distribution” of all marital assets, debts, etc. This means that unless you and your spouse have entered into a prenuptial agreement, the courts may divide any assets or income acquired during the marriage (by either party) according to prevailing law. Typically, this will result in a 50/50 split of all marital assets.
Separate monies (such as gifts, inheritance, or premarital assets) that are commingled in joint accounts can also be included in the marital estate and divided by the Courts. Additionally, if one spouse earns a greater income than the other, the courts may order an award of spousal support or maintenance (formerly known as “alimony”) to the less-monied spouse.
You can avoid this unintended division of your assets by preparing and executing a prenuptial agreement with individual legal counsel. You’ll determine in advance which assets are to be divided and which are to remain the separate assets of each spouse. With a prenup, you can also define which types of assets are to be treated as marital and which will never be considered marital.
Finally, with a prenup, you can decide if either party is to receive support in the future and set limits on the amount and duration of any support award. The predictability that comes with a well-drafted prenup will safeguard you from protracted and expensive litigation as well as the whims of the courts. It will ensure that you are well protected in the event of a divorce or separation.
You can expect to receive your first draft within seven business days after a comprehensive consultation with one of our attorneys. Depending on the revisions requested, the final draft may take a bit more time.
If you are getting married within 30 days, we offer a “Rush” 48-hour turnaround service for an additional fee. Please let your assigned attorney know if you need your prenup expedited and we will do our best to accommodate your needs.
Ideally, right after making the decision to get married, and before starting on your wedding plans.
The first step is to begin discussing your finances and how your monies will be used during the marriage. And of course, how everything would be handled and divided in the event of a divorce. You'll need some time for the agreement to be prepared by your attorneys and reviewed by your fiance's attorneys. It can sometimes take several weeks to finalize the terms, and execute the final prenuptial agreement. Make sure you allow yourself enough time to get this done without creating a pressure cooker.
You do not need to file a copy of your prenuptial agreement with the court unless you are seeking to enforce the agreement. Our office will retain one digital copy of the fully executed agreement for our records and we recommend that you retain one original copy in a safe place as well. Generally, a digital copy of your agreement will be as good as the original.
This is property that one party owns prior to the marriage. It can be in the form of a house, a car, financial and retirement accounts, a business, money (such as an inheritance), or any other asset that either spouse would like to keep in the event that the marriage is dissolved. A well-drafted prenup will give you the ability to designate which assets are to be kept separate and which assets are to be included in the marital property regardless of how such property is acquired.
In a divorce or separation, spousal support (or “maintenance” as it is referred to under New York law) may be awarded to a lesser-earning spouse in order to provide financial assistance and maintain the lower-income spouses’ lifestyle. Spousal support is intended to recognize a partner’s contribution to the marriage and help them to achieve financial independence. Spousal support may be ordered by the court based on factors such as the length of the marriage, standard of living, each person’s earning potential, contribution to the household or career, and the physical health of the recipient.
Many prenuptial agreements directly address spousal support or maintenance. By determining the amount of support and the duration of support, if any, in advance, couples can avoid litigating the issue in the event of a divorce. Most importantly, you and your spouse can avoid being subject to the support obligations imposed under New York maintenance guidelines.
In New York, spouses can agree to eliminate spousal support under a prenup unless the result will leave one spouse destitute. If a spouse deprived of support under a prenup is forced to seek public assistance, the court could overturn the support provisions of the prenuptial agreement. Although this is rare, keep in mind that a court does have the right to modify the terms of a prenuptial agreement if its application would result in unconscionable circumstances for one spouse. For this reason, it is important that your prenup is not completely one-sided on its face.
Finally, you and your fiancé can also predetermine under which circumstances and how much support would be awarded in the event of a divorce. This gives you both an opportunity to agree on predictable terms that work for you rather than leave it to a future court to make the decision for you.
Prenuptial agreements enable couples to pre-determine how their assets are to be treated in the event of a divorce or separation, and in some cases, the death of one party.
The greatest problem in most divorces is deciding how to divide property and money and how much support to award to a less-monied spouse. Many prenuptial agreements are entered into simply because couples do not want the courts to decide their asset distribution should their marriage end. A small investment in upfront planning can save you heartache, costly litigation, and tremendous financial hardships should you ever need it later.
While there is no requirement that an attorney prepares your prenuptial agreement, there is also no substitute for competent legal representation, guidance, and experience. To avoid the possibility that a court will one day declare your prenup invalid, it is best to have an experienced matrimonial attorney draft your agreement. There is no “one size fits all” solution when it comes to a prenuptial agreement as there are often many unique issues to consider when preparing a prenuptial agreement. Having an experienced attorney work with you to draft its terms and provisions will ensure that you are properly protected. Competent legal guidance can mean the difference between an agreement that will be upheld and one that may be set aside by a court in the future. A small investment in expert legal representation can save you a lifetime of regret.
You don’t have to come to the office - all of our attorneys are available virtually.
We work by phone, email, and video conferencing so there is never a need to meet in person. In fact, the majority of our clientele are happy to conference with you by phone and exchange documents and information via email. We will do our best to schedule calls and meetings around your schedule. Should you prefer a face-to-face environment, we also offer video-conferencing as needed. Our goal is to make the legal process as simple and convenient as possible for you.
Yes. As with all matrimonial legal documents, you and your fiancé will need to sign your prenuptial agreement in the presence of a certified notary public. Rest assured that we will send you instructions on how to properly execute your prenuptial agreement. You will also have the ability to execute all of your legal documents online using a virtual notary platform provided through our offices. You will be sent a unique link to securely sign and notarize your documents using your camera-enabled desktop or smartphone. Executing your prenup online will be simple and convenient.
A waiver of spousal support is a provision in a prenuptial agreement that allows you and your fiancé to waive the requirement of spousal support entirely or limit the amount or duration of the support that a higher-earning spouse would otherwise have to pay to a lesser-earning spouse in the event of a divorce or separation. Including a spousal support waiver in your prenuptial agreement enables you to have greater control of your finances and avoid expensive litigation and the whims of the Courts. It also allows you to pre-determine what, if any, support arrangement you are comfortable with - without being subject to New York maintenance guidelines.
That depends. If the house remains in your name and you continue to maintain its expenses, including mortgage payments and upkeep from separate funds, you will likely retain all or most of its ownership. However, if you commingle the expenses and maintenance of the house with marital resources, your spouse may establish rights to the equity you accrue. If so, your spouse will be entitled to partial ownership of the house. A prenuptial agreement can establish specific legal distinctions between the assets you would like to remain separate and the assets that are to be treated as joint marital property. A prenup will give you the ability to protect your assets from the rules of equitable distribution that would otherwise be applied by the court.
Prenuptial agreements are not a “one size fits all” kind of document that can be left to websites offering generic template prenups or non-attorney services. There are many websites out there touting “do-it-yourself” online services, but be cautious.
Prenuptial agreements are legal documents that are state-specific and require the high-level expertise and experience of an attorney to ensure that you are properly protected. Boilerplate agreements prepared without any legal guidance will likely yield unanticipated results. Poorly drafted prenuptial agreements or improperly executed prenuptial agreements can become hotly contested fiascos when it comes time to enforce the terms and can be set aside by the court.
Avoid these pitfalls and always work with an experienced matrimonial attorney even if it costs a bit more. This will save you money and a lifetime of regret in the long run. Be certain that whichever service you utilize to prepare your prenuptial agreement takes the time to review your financials as well as your specific needs before preparing your prenuptial agreement.
That's simple! After representing over 10,000 matrimonial clients over the last decade, we understand the plethora of issues that arise during divorce or separation. We have the expertise and experience to help you navigate a complex legal landscape. That’s a level of skill that not many law firms offer. We know the pitfalls and the hurdles and can help you avoid them. Above all, you will enjoy the peace of mind that comes with high-level planning. Let our attorneys help you better protect your future and the things that matter most to you.
In short - Yes. There are several reasons why having an attorney to represent each of you is the best option. Firstly, New York Courts tend to be more cautious about enforcing a prenuptial agreement that is signed by a party who did not receive independent legal representation. If the prenup seems unfair to the party without legal representation or if there are concerns about coercion or duress, a court may invalidate the prenup outright.
Another concern is that the non-represented party may later claim that they did not understand the terms of the prenuptial agreement before they signed it. When both parties have the benefit and advice of qualified legal counsel it is significantly less likely that a future court will set aside a prenuptial agreement on the basis of coercion, duress, or lack of competency. For these reasons, we highly recommend that your fiancé hires an independent attorney to review the prenuptial agreement and advise him or her regarding its terms before signing.
A prenup can help to ensure that the assets and property you intended for children from a prior relationship will be passed to them as you previously planned. If you are planning to have another child (or children) in a new relationship, you can also make specific accommodations and allowances for them in your prenup. However, you will still need a separate estate plan to ensure that you identify your beneficiaries and the property you want them to receive when you die.
Consider the time, effort, and money you’ll be investing into your wedding plans and your new life together. You are each heading into marriage with certain understandings and expectations. You likely have gotten this far on your own terms. If something changes and you do find yourself divorcing or separating, wouldn’t you want to split on your own terms as well?
The key is predictability. Everyone sleeps better at night and enjoys a greater level of trust between spouses when there are fewer uncertainties and more predictability. A well-crafted prenup will offer both of you predictability and peace of mind.
Money is one of the top reasons that couples separate and divorce. It's essential to have an open and honest discussion about your future and put your long-term financial expectations in writing. This will help you attain your long-term financial goals as a couple. When you’re both on the same page, you will be in a better position to avoid financial issues that can threaten your marriage. Transparency about financial matters will also strengthen your trust in one another. Finally, memorializing your financial expectations and understanding in a prenup will offer you a greater sense of predictability about the future.
Certainly. If you were presented with a prenup prepared by another attorney we can review the agreement with you and negotiate the proposed terms to ensure that you are adequately protected. Our attorneys will make any necessary modifications to the document. We'll also communicate directly with your fiance's attorney to coordinate the finalization and execution of the document.
We offer three different affordable, fix-fee prenup packages ranging from prenup review to advanced negotiations and complex agreements. Our primary legal services include:
- Prenuptial Agreement review - $995
- Comprehensive Prenup - $1,995
- Advanced/Negotiated Prenup - $2,995
Each prenup package includes a comprehensive client consultation and financial review.
More information is available on our Legal Services page. Feel free to contact us at (646) 395-9100 with any questions or schedule a FREE consultation with one of our attorneys.