This eliminates the concern for the dreaded 3 D’s of Delusion, Distress and Duress, for the most part. You will complete financial schedules to disclose each of your assets and debts. You will acknowledge that you are signing in a timely manner and that these are your desires. Very rarely is a properly drafted prenuptial agreement not considered by the court. New York courts have consistently enforced prenups that are not tainted by delusion, duress, or distress.
Then, someday, if the prenuptial agreement is reviewed by a judge, they will look at all the circumstances surrounding the terms and agreements reached. Choosing NYC Prenup does help the judge uphold the agreement to the letter that you and your soon to be spouse have drawn up since it shows that you have made these financial decisions in good faith, together.
The cases below may be of interest:
Gottlieb v. Gottlieb, 25 N.Y.S. 3d 90, 138 A.D.3d 30 (2016):
Court upheld a prenuptial agreement as valid and enforceable even though one party was keeping much more assets than the other party. The Court declined to undo the agreement because one party now regretted the choice to not ask for more in the parties prenuptial agreement.
Gutherz v. Gutherz, 992 N.Y.S.2d 158 (2014):
Court found that the party trying to throw out the prenup failed meet the burden of proof to invalidate a prenuptial agreement. Court found that “an alleged failure to disclose assets does not, standing alone, constitute fraud or overreaching sufficient to vitiate an agreement, particularly in the absence of evidence of an attempt to conceal or misrepresent the nature or extent of the assets.”
A.N. v. E.N., 960 N.Y.S.2d 48 (2012):
Court set aside a prenuptial agreement on the grounds of it being unconscionable, overreaching and duress during the execution of the agreement where one spouse had no input in negotiating the terms and the agreement was entirely one-sided. In this case, the terms of the agreement the one spouse actually signed were very different from the actual terms of the agreement.
E.C.-P. v. P.P., 946 N.Y.S.2d 66 (2011):
Court threw out the prenuptial agreement where the signing of the prenup was fraudulently induced with promises that the party asking for the prenup would tear up the agreement after they had a child, but then failed to follow thru on that promise. The case demonstrates the importance of a properly drafted and executed prenuptial agreement.
]]>If you are reading our blog, you’re probably someone who is already thinking about money, and the way it is going to affect your marriage. It is good for our clients, and potential clients, to gain insight into why the money conversation is so difficult for a large number of people. We see a lot of individuals who feel that opening up their private financial documents to someone else as more intimate than letting them read a personal journal. We understand, especially since we have been niche attorneys in this field for many years.
]]>New York Domestic Law §236(B)(3) provides as follows: “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision."
What does this mean? We recommend that both parties sign the prenuptial agreement in front of notary public. That notary should take steps to identify and acknowledge each party, the most logical being to ask for photo identification such as a passport or driver's license.
]]>A prenup does not prevent a spouse from voluntarily contributing their separate property to the marriage at any point—it just prevents that from happening accidentally. If your partner is entering into the marriage with a lot of debt, a prenup can help ensure that you won’t be responsible for those debts if the marriage ends. If you are significantly wealthier than your partner or have greater earning potential, a prenuptial agreement can help ensure that your partner is marrying you for who you are, rather than for your money.
The contractual terms of the prenup generally minimize the conflict and remove the need for either party to get nasty or try to gain leverage in the divorce, allowing them to remain laser-focused on minimizing the impact of the split on their minor children.
Finally, a prenuptial agreement can prevent your spouse from overturning your estate plan, ensuring that your estate plan works the way you intended after you pass. Where one or both of the parties already have children from a prior marriage, a prenup allows each parent to protect the interests of their children as they re-enter a marriage.
]]>Once you have discussed your assets and debts, the two of you need to decide how you will handle them in the event of divorce. Will they remain separate in the event of divorce or will they become marital property? If one of you pays off individual debts for your spouse such as student loans or car loans, will you expect to be reimbursed in the event of divorce or will you consider this a gift? If you purchase a car or home together and either of you use savings acquired prior to marriage, do you plan on dividing the property proportionally?
]]>The timing we suggest couples enter into their prenuptial agreement 1 to 3 months prior to the marriage. Unfortunately, many marriages don’t have a fairy tale ending. Those divorcing couples who entered into a valid prenuptial agreement before getting married have a document that provides their desires in a legal document, minimizes potential conflict and legal costs. A well-drafted prenup is like a road map that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process.
Responsible adults routinely prepare for the unexpected as part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. The chances of a marital “disaster” approach is often 50% or higher, so every marrying couple should consider getting a prenup.
]]>Safety in a relationship comes from many attributes among the parties, but one of them is the sense that the other person takes your wellbeing into consideration at all times and wants to be responsible for protecting you from things that the world brings. Safety is knowing that the other person understands you, and won’t expose you to anything that would make you feel hurt, upset, or uncomfortable. Safety is giving you the peace of mind that he or she isn’t hiding anything.
Of course, everyone has the right to a private life, private parts of his or her day, that is part of what keeps people grounded in their own identity and not codependent. However- and this is a BIG however- not when it comes to finances once you’re married! This is just asking for trouble. If he doesn’t want to talk about it, this is a RED FLAG! If you don’t want to talk about it, write out the reasons why. Take the situation on as you would a business meeting and organize your thoughts in the least emotional way possible. It could just be some baggage; maybe you’ve talked about money in the past and it went poorly. Maybe you’re neglecting to share credit card debt, nervous that you will scare the other partner away, or the interest rate on your student loan. Give you partner the courtesy of knowing what they are dealing with, because they will be dealing with it, whether they know it or not. We value being able to be a part of this process.
In terms of trust, creating a prenuptial agreement with your partner says more about the trust in your relationship than it says about anything else. It says to your partner, I’m opening up myself to complete transparency. Here is my situation, and here is where I see us going, together. And, if unforeseen circumstances do occur, here is what we can do to ensure that we are both in a safe and comfortable place. In its most basic form, a prenuptial agreement with your partner is one of the most beneficial actions you can take for your relationship.
]]>It is a remarkable statistic considering that just 20 years ago, it was a social taboo to remarry late in life- to many people- who would be widowed and stay alone, or divorce and never try their hand at love again. But you know where we are going with this- later in life marriages mean more complicated bank accounts…..and that means you need to talk prenuptial agreement, no matter what!
Call it being ‘fashionably late’- you may have been married before, or this is your first plunge, but either way, Americans, including New Yorkers, are getting married older and older, trends and statistics say. This is creating a whole new set of issues, than if you were just starting out at the age of 25. You may have debt from your children's student loans, or money you have acquired through family interests, but the odds are that you do not have to worry about what you have now, so much as plan for what you will do with what you earn in the future.
Of course, not all late-life marriages are first marriages. More and more couples are remarrying after the death of a first spouse, or getting divorced after the kids leave the nest and finding ‘golden year happiness’ with a companion into their 70s and 80s. It is a beautiful phenomenon that as life spans are lengthening and social norms changing, people are getting 2nd chances at love, but there is a lot by way of planning that needs to catch up to our pocket books.
The difference is huge for a couple getting married in their 50s, then. This couple will have savings, retirement plans, life insurance policies, IRAs, trusts, bonds, and stocks, mutual funds, the list goes on. They will have had career changes, and therefore their funds maybe allocated across a variety of markets in many different products. If one partner understands finances, and the other doesn’t, this can create issues if you are older because there is well, more to consider.
Getting married later in life means that there are more financial considerations for the two of you to agree on and unfortunately, one reason why your grown children may be apprehensive about your impending marriage. A prenuptial agreement will define both of your expectations on paper so that there is no question from family members at a later date as to what your intentions are. Among the issues you will need to consider is whether you wish to keep your finances separate or combined during your marriage and how you will intend to handle long term medical care should one or both of you need long term medical care or should one of you outlive the other. In addition to a prenuptial agreement, it would be wise to consult with an attorney about a will, living trust and health care directives so that all of these documents are in agreement and your families are not left with questions or concerns about what your intentions are.
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It doesn’t have to be a stressful discussion. Here are some ways you can have the talk about your prenuptial agreement, and its terms and conditions, without the presence of the New York prenup lawyer, without it putting unnecessary strain on your relationship during an exciting time in your lives.
New York Prenup looks forward to helping you create your personalized prenuptial agreement. Our attorneys have specialized in prenuptial agreements for many years and we are experts in New York prenuptial agreement law. Visit us at www.nycprenup.com
]]>A well-drafted prenuptial agreement can eliminate conflict in a divorce because most of the issues that cause spouses to fight are already decided. If prepared correctly, a premarital agreement should increase the chance that a divorcing couple can avoid a trial and keep things amicable. This is why we have spent years specializing in the drafting of prenuptial agreements.
Premarital contracts typically contain simple terms that replace the complicated default state laws covering the following marital rights. Together you will decide a marital claim against the retirement savings or pension, what is to be separate property/assets/debts of the other spouse in the event of divorce. If a spouse can seek spousal support. If a surviving spouse can claim an elective share or “take against” the estate of the deceased spouse; and whether a spouse can make a marital claim against the retirement savings, pension and/or the separate property/assets of the other spouse in the event of divorce.
]]>When you are providing financial data, we request you each provide the financial institutions name and the amount of the investment or debt in that account. An example of a checking account would be “Bank of America $10,50.00”.
Some people want to be more specific; they will include the last 4 digits to distinguish multiple accounts with the same institution. This often helps when there are more than one accounts at the same institution, for example, we frequently reach out to clients who provide us with information on credit cards such as:
Citibank 5533- $1,000.00 Citibank 4298- $5,942.39
This way, when we are referencing accounts, calculating items, we can ensure that we do not leave anything out, or duplicate any accounts that we reference in the document’s terms.
We do not ask for any further details, and you should be very wary of any source who DOES request those numbers. You do not need to provide financial institution information (beyond your method of payment for the good or service) to create a legal document. This ensures that your account information including full numbers, expiration dates, security codes, passwords, and any other details are not provided. In the age of cyber security issues, NYC Prenup spares no expense in ensuring that the server upon which our website is being run is exceedingly up to date and utilizing state of the art technology to protect your information. Yes, we are New York lawyers, not tech specialists, but we do have an IT expert who IS the specialist in this field, who has made sure that the route by which your information is sent is completely safe.
We have been providing this service for several years and not once has there ever been an issue with security of accounts and financial information. Your information is safe with us, and the document we prepare will be yours within just 48 hours. After that, none of your information is saved in our system and we do not have a database which stores client account information or financial documentation.
]]>Yes, even though your prenuptial agreement may affect how your property is distributed it is not in place of an estate plan. A prenup will determine what is separate property. Your will or trust will determine where that separate property is distributed. who gets that property when you die. Other things an estate plan will speak to that a prenuptial agreement doesn't is an executor of your estate, guardian for any children, who makes financial and medical decisions on your behalf, any emergency health care issues and any specifics for a funeral or burial instructions. As you are considering future planning we recommend an estate plan for protecting yourself, your spouse, and your family.
]]>Yes, You are older now, and have assets, retirement accounts, a home, a business? Do you have grown (or almost grown) children? You and your partner may worry about the financial consequences of marriage. We recommend you draft a “gray” prenup before you remarry.
We have found that a major worry that senior couples have when deciding to marry is how to balance their financial allegiance between their new spouse and their children. They desire to leave an inheritance to the children of their first marriage when they die. Also, they wonder about protecting the financial security of their new spouse. When trying to balance these equally important people in their lives, they seek to create harmony and trust in the newly blended family and to validate care for both their children and new spouse.
We believe a prenup is the best way to address these decisions with your new spouse. You can mutually set the requirements of the new estate plan in a binding contract – the prenuptial agreement. As a couple, you decide how to be financially supported during the marriage for example, a plan for withdrawing retirement assets. Making decisions on sharing household expenses equally, or in proportion to income or assets.
A prenup can reduce or eliminate the risk of litigation if the new marriage ends in divorce. A prenup that shows loving care at the beginning of a marriage by making adequate plans in case the marriage ends in divorce, may have the effect of making the new marriage even stronger.
We know senior couples want the best for the people they love – that includes providing security and a fair financial result even if the marriage ends in divorce. Marriage relies on a great deal of mutual consideration and trust. Planning for a thoughtful and equitable prenup is giving your entire family the security you desire.
]]>Postnups are particularly beneficial when one or both partners have significant pre-marital assets or children from previous marriages.
Did one of you receive a large inheritance? If one of you unexpectedly receives a sizable gift from a family member, it’s time to consider a postnuptial agreement. Under normal circumstances, new assets become joint assets. A postnup can help keep assets solely for you, in case of a marital split.
Do either of you have children from a previous marriage? When there are blended families, postnups often determine the share of assets your spouse will receive, in the event of a divorce or your death. The children will receive the inheritance you designate. Often without a signed postnuptial agreement, state courts will give the current spouses a share of your estate upon your death.
Do one of you own a profitable business? A postnup protects income and or assets you earn during the marriage. This can be crucial for spouses who own their own companies. Without a postnup, an ex-spouse may be entitled to collect a percentage of the business or its earnings.
Did you hate the idea of a prenup? Some people believe that discussing prenuptial agreements is a stress-inducing event when the couple is already dealing with the wedding planning overload. For those couples, delaying this and planning for a postnup makes more sense.
Postnuptial agreements can prevent expensive, hostile divorce court battles and avoid inheritance disputes between a person’s surviving spouse and his or her heirs. When you and your spouse make contractual decisions, you are in control of your future, not a court.
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No matter what, you know your relationship is strong and you want to make sure you’re both protected, this is why you should have a cohabitation agreement with your partner.
]]>This has provided more time to consider the value of a prenuptial agreement.
Thousands of couples were forced to delay, change or cancel their wedding plans due to the difficulty in obtaining marriage licenses, the closing of wedding venues and the prohibitions against mass gatherings. Many engaged parties are using this down time to consider and then discuss the benefits of entering into a prenuptial agreement for the first time.
A written contract entered into by a couple prior to marriage that allows them to determine many of the legal rights they agree upon when marrying is a prenuptial agreement. People want to control what happens if their marriage eventually ends by death or divorce. Couples choosing agreed-upon terms that provide clarity as to their decisions.
A client who recently got engaged and was planning to marry his fiancé before the end of the year shared that he never considered the benefits of a premarital agreement until he witnessed the record-level job losses and financial hardships suffered by millions of Americans over the last few months. Bruce says, “After COVID we both want a prenup because you just never know what’s going to happen in the future. Every person I know getting married is thinking that a prenup might be a good idea. Since you can’t really count on things working out the way you hope with life in general, at least we can count on our prenup.” Bruce’s rationale for wanting a premarital agreement is similar to the mindset held by many people who have contacted our company since COVID-19. The pandemic has people craving certainty and control over their lives.
]]>The financial aspect of choosing to join your lives, is a priority, and a prenuptial agreement, is very important for your financial planning.
The state of New York has fair, honorable judges. Decisions made here are fair and equitable, for the most part, but a judge is only as good as the information he/she has, so if you and your spouse are arguing while splitting up, he/she is getting 2 sides of the same story- with usually very little middle ground- and he/she has to go from there in making a decision based on only your financial documents. Family ties, emotions and other intangibles don’t go into the decision because, well, he doesn’t know you. He doesn’t know that the inheritance from your grandmother is really important to you that it gets passed to your children, or that you really didn’t care that much about the beach house, but you did want to have a say in the apartment you rent out in Midtown. Basically, if you and your partner had discussions about these things- verbal agreements- that is well and good, but it really doesn’t mean much in the court of law.
At NYCPrenup, we make it our goal to make things as easy and cost effective as possible for every couple. Let us help you enter into your wedding day without the burden of future financial concern and draw up your prenup with us today!
]]>Will you have a joint bank account? Who will contribute what percentage of income into the residence? What property will be purchased jointly – real estate? Motor vehicles? Furniture?
You will need to disclose your financial situations to one another so there is an understanding of debts, assets, obligations, incomes, is also part of this process. Each partner will then sign it and keep a signed copy for themselves. As with a prenuptial agreement, the time to review the agreement should not be rushed or based upon something occurring such as the signing of a lease. You want to allow time for consideration and independent attorney review.
Your cohabitation agreement can general or specific. Some couple’s agreement will include specific terms about childcare, support, and guardianship. Do you already have a house, a dog, or bills? Your shared interests in what you own can cause problems in the event of a break-up or death.
If you and your partner want to live together but want to safeguard individual property to leave it adult children, you each can waive the right to receive any property from your partner as an inheritance. It is important to state this in writing to make your desires clear.
Cohabitation agreements have clauses for personal property, debts, inheritances, and healthcare decisions if one partner becomes incapacitated. You and your partner will have to discuss what issues are important to you, how you wish to address them, and any restrictions you wish to include.
We recommend your cohabitation agreement refers to how all of the property gets divided. What you have now, as well as any property you might obtain in the future. If you or your partner have debts, such as student loans, or either of you acquires debts during the relationship, dividing responsibility for those debts through your agreement is essential. How you intend to acquire joint debts, such as a credit card. Your cohabitation agreement should address how different types of debt get divided after a breakup, as well as who is responsible for making payments while you are still together. Most people consider pets part of the family, the law deems them property. You decide who cares for any pets, pays pet expenses, and who keeps what pets.
Non-married couples do not have an automatic right to any spousal support. Your cohabitation agreement can address support payments directly, either by stating that both of you agree there will be no such payments in the event of a breakup or by providing the details of any payments that will be made. If you decide to agree on support, you will specify the terms of who pays, how much, and for how long. Other factors such as how long the relationship lasted, if one partner agreed to raise any children, leave the workforce, pay for or pursue an education, or make other contributions to the relationship in lieu of earning income.
Healthcare is another area in which there are significant legal differences between married couples and those living together outside of marriage. Your cohabitation agreement should address who is responsible for obtaining health insurance coverage and how much each partner must contribute toward it. This is especially important if one partner intends to stay home and not work or otherwise does not have access to employer-provided coverage.
Lifestyle clauses often address infidelity and an agreement to pay a financial penalty. Some choose to state intention of where the couple will spend vacations. Decision on which partner will move out, how much and what kind of notice will be provided to each other, if you intend to sell jointly owned property or whether one partner will buy out the other are considerations to include in your cohabitation agreement.
When you decide to move in together, there is more than intimacy and living space, you are sharing financial, healthcare and possibly even children responsibilities. The law does not provide for non-married couples as it does married couples. To make sure your desires are legally protected; you create a cohabitation agreement.
]]>Your prenuptial agreement terms can determine which of your assets are separate property and which are marital property. Some spouses draft in their prenuptial agreement a waiver to each other’s retirement accounts. Other couples chose to state an amount of income earned by each spouse that is that spouse’s separate property. When you state these agreements, it will change your spouse’s right to inherit that property if you die during the marriage.
There may be circumstances where you do not know what you could potentially receive from a relative and if this is your situation we can create blanket language to cover your predicament.
]]>We recommend that as you enter financial contracts together you discuss the desire for a prenuptial agreement if you were to marry. If you are signing a lease, a loan, opening a joint account, you discuss that having a contract for financial planning is something you believe is a value. Having clarity with you partner about financial beliefs is a element of communication that many people are uncomfortable with. We suggest you begin being comfortable with these talks early on so they are no longer an issue. If you have discussed a date and are planning a wedding, prenuptial agreement terms should be included in those conversations. When you get closer you get to the date of the wedding, phrases such as “I bought my dress”, “my family has flights”, hiring contracts have been signed”, “invitations have gone out”, can lead to a duress defense against a prenuptial agreement in court. The foundation of having financial conversations about money is being set when you challenge the tone from being uncomfortable to comfortable.
]]>If you desire to determine household chores, “I will take out the trash. You will do the laundry. I will food shop. You will cook.” These provisions will not be enforceable in courts, but it often makes people feel better. We have drafted clauses in prenuptial agreement determining the custody of horses, provided terms for lump sum alimony payments, declared alimony only after so many years of marriage, defined the expiration period of a prenuptial agreement.
There are goodwill clauses where you agree to not disparage the other party in the event of a divorce. Social media clauses are agreements to not sharing embarrassing photos with a violation fine disclosed. If you anticipate using reproductive technology for creating your family the genetic material which is stored can be included in your prenuptial agreement.
Have you an entrepreneurial idea or intellectual property that you want sole ownership of? There are ways to incorporate that into a prenuptial agreement. How about family heirlooms that will be considered only one parties asset? You can include future family heirlooms – what will be done with family photos in the event of a divorce? This can be a costly battle in court later so determine know that photos will be made available for duplication in the event of future separation.
Creating a vision of what you would want to leave a marriage with can seem odd while building a life together. You know what is important to you and what you would want to protect in the event of a divorce. If you invest the time and energy now and it will cost less later.
]]>Although each marriage is different, these scenarios are ones we frequently see where a postnuptial agreement:
When you contractually come to terms, you and your spouse decide who gets what, and when without the court determining what is fair.
]]>Additionally, when assets are being passed on to children from a prior marriage, trouble can occur. Experts advise people who remarry to have even stronger asset defenses—prenups and even postnups that are highly detailed and clearly laid out.
The message from the experts is simple: you can never have too many documents backing up your intentions. Contact us today to get started.
]]>Having an idea about what your feelings are prior to marriage can allow for a productive conversations with direction towards future not past habits.
Often marrying your financial opposite can be a great decision. Sure, you may have an occasional disagreement about money. Drafting and discussing a prenuptial agreement can help couples find a financial middle ground that makes both partners happier.
]]>We can help with creating your prenuptial agreement or your postnuptial agreement that fits each of your financial situations.
Setting down your intentions, disclosing your assets and your debts are important to the successful joining of any partnership, especially a marriage. The emotions that many people all over the world are discovering during the social distancing are high. Logic and planning may be set aside. We want to relieve the pressure from having multiple meetings, long phone calls and unnecessary expenses. We created a better way to bring this service to our clients. We know that our clients can have hard conversations and come to mutual understandings. We trust that you can disclose the assets, debts, and intentions. Then move forward to hopefully not look upon that legal document again.
We are here to help you bring logic into the emotion and plan for your future.
]]>If you decide not to execute a prenuptial agreement before your marriage, or a postnuptial agreement after your married, then the future of your retirement is unknown. That is not only the portion earned during the marriage, but any premarital portion of a retirement plan. Courts do not have to give credit for monies earned or held prior to the marriage.
Contributions to the plan and other such benefits which accrued during marriage are considered marital property. Any income produced by the retirement plan, including reinvested income, is also considered marital property. Marital property is divided in divorce. There is not an automatic 50/50 division.
You can choose to divide each party’s retirement account by a certain percentage, each keep your own or a specific dollar amount. The unknown can be avoided by discussion with your partner and drafting those decisions in your prenuptial agreement or postnuptial agreement. The choice is yours – the parties to the marriage decide or the judge.
]]>We think about it like this - your partner is showing respect for you and your relationship by protecting each of your personal financial goals and priorities. Together, you are sharing with each other, a foundation -what you each entering the marriage with, in terms of debts and assets. As your grow together and build wealth, acquire additional debts and responsibilities you set the intention in your prenuptial agreement of how you anticipate the division of those assets and debts should you choose to uncouple. Communication about hard things is showing trust of one another. And remember, prenuptial agreements need to be fair to be enforceable!
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