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Do you need a prenuptial agreement?

When you are in love and getting married, the last thing you want to think about is what will happen if things fall apart. For this reason, many couples marry without considering a prenuptial agreement. 

It may not be romantic, but discussing a prenuptial agreement is an essential piece of marriage preparation. This is particularly true if you own property or a business that you wish to keep in case of a divorce or have children from a previous relationship.

A prenuptial agreement allows you to divide assets however you as a couple decide, not what is dictated by the state of New York. In this way, it is similar to having a will or estate plan in place to prepare for the unexpected. A prenuptial agreement is valid as long as it protects both you and your spouse and it was entered into with full disclosure of assets.

In general, the prenuptial agreement can address the following:

  • Separate property - In the agreement you can indicate what property is to be kept separate from shared assets. For this to be valid, the property must be kept separate, in you or your spouse's name only. For example, if you wish to keep real estate you own separate, keep the title in your name only or if you have a significant amount of cash, keep it is a separate bank account.
  • Marital property - Conversely, you can deem property that you or your spouse solely owned before the marriage as shared. 
  • Pre-marriage debt - If you or your spouse has significant debt, you can state that the debt will stay with that person and not be shared.
  • Spousal maintenance - You can establish spousal support agreements for during the marriage and in case of a divorce. This is particularly helpful if one spouse puts their career on hold to care for children.
  • Support for children from prior marriages - You can ensure that minor children who are brought into the marriage will be provided for if you divorce.

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