The following article will cover:
- Prenuptial Agreement and Its Main Purposes.
- Issues Addressed in Prenuptial Agreements.
- Enforceability of Prenuptial Agreements in Court.
What Is A Prenuptial Agreement And What Are Its Main Purposes?
A prenuptial agreement refers to a contract entered into by two individuals planning to get married. It serves primarily two functions:
- Capture current assets: It documents the financial assets and property both parties hold before marriage. As you might be aware, couples generally enter a marriage full of love and optimism, hardly considering the possibility of divorce. Yet it’s an unfortunate fact that approximately 50% of marriages do end in divorce. Financial institutions maintain records for about seven years, leading to difficulties in divorce cases where proof of premarital assets is required after a more extended period. For example, individuals might struggle to demonstrate the premarital component of their investments and retirement accounts if they have not kept up-to-date records. This is where a prenuptial agreement becomes invaluable.
- Determine asset distribution upon divorce: A prenuptial agreement helps establish how assets and property will be distributed in the event of divorce. While generally divorce law provides for an equal 50-50 division of assets, your prenuptial agreement can propose a different arrangement. For instance, let’s consider a scenario where a future husband owns a house before marriage. In a typical divorce situation, the wife would be entitled to a share of the equity build-up (e.g., pay down of the mortgage during the marriage) and active appreciation of the property. However, with a prenuptial agreement, you can decide to deviate from this standard rule.
What Issues Can Be Addressed In The Prenuptial Agreement?
Prenuptial agreements commonly address financial concerns, such as the division of assets and property, and spousal maintenance. However, their scope is broad and can cover virtually any issue. You can include provisions concerning:
- Custody and visitation rights of existing children
- Child support for existing children
- Distribution of current debts and those incurred during the marriage
- Handling of assets that gain value or are acquired during the marriage
Essentially, a prenuptial agreement can encompass any clause that might be included in a separation agreement or divorce settlement agreement.
Are Prenuptial Agreements Enforceable In Court?
Prenuptial agreements are indeed enforceable in court, functioning as binding contracts between the parties involved. In theory, one party could take legal action against the other for a breach of contract. However, this approach is seldom used.
Usually, if a prenuptial agreement needs enforcing, it indicates some form of marital discord. In such cases, attorneys typically recommend the client initiate a divorce or legal separation case. Both proceedings can incorporate the prenuptial agreement, thereby facilitating its enforcement within the context of the divorce or legal separation.
Once the prenuptial agreement becomes a court order, it can then be enforced via a post-judgment application. During the proceedings, if the parties don’t wish to dismiss any clauses of the prenuptial agreement, negotiations can take place to resolve any outstanding payments, asset distributions, property divisions, or alimony due as per the agreement.
These negotiations can result in a subsequent agreement that would be incorporated into the judgment of separation or judgment of divorce, further reinforcing the enforceability of the initial prenuptial agreement.
For more information on Using A Prenuptial Agreement In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 362-3080 today.