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Reasons to Consider A Pre Nuptial Agreement
It is apparent that many couples spend far more time prior to the wedding planning its details than they devote to how they actually envision the day-to-day life of their marriage. A discussion as to how each party views, spends and saves money occurs far too infrequently before marriage.
Agreements entered into before the marriage can provide an opportunity to have those discussions, which can be especially beneficial if either or both of the parties have assets before the marriage, including:
- Retirement benefits
- Real property
- Stocks
- Inheritance
- Trusts
- Other assets which may be used and contributed during the marriage
The benefits include that the parties' expectations and desires are brought out in the open and can be addressed in a positive, non-adversarial manner.
These agreements can provide certainty should the marriage no longer be viable. They can lessen any acrimony that is often present in the dissolution of a marriage and can also protect children from a prior marriage, protect future gifts from family, inheritance, or issues related to a family business.
These discussions can also assist either spouse in making decisions throughout the marriage, including their choice of employment and assessing their future in all events.
Pre-Nuptial Agreements
We pride ourselves in our skillful efforts to handle the delicacy required in such matters as we are mindful of how challenging and emotional it may be address these issues and reach a resolution in advance or your marriage.
Pre-Nuptial Agreements are documents which are prepared and executed prior to marriage. They do not have any force or effect until the parties are actually married. In the preparation of a Pre-Nuptial agreement, the parties should each have separate counsel and, ideally, the parties should allow sufficient time prior to the marriage to ensure that following its execution or at the time of its enforcement, no allegation can be made that a party was under any type of pressure or duress to execute the document on the eve of the marriage. Likewise, there should be full financial disclosure typically in the form of a written statement of each party's assets and liabilities, to ensure that each party has had sufficient time to consider their respective financial circumstances in light of either party relinquishing rights that they would have otherwise had absent the Pre-Nuptial agreement. The Statements are typically annexed to the Agreement.
Pre-Nuptial Agreements are documents which are prepared and executed prior to marriage. They do not have any force or effect until the parties are actually married. In the preparation of a Pre-Nuptial agreement, the parties should each have separate counsel and, ideally, the parties should allow sufficient time prior to the marriage to ensure that following its execution or at the time of its enforcement, no allegation can be made that a party was under any type of pressure or duress to execute the document on the eve of the marriage. Likewise, there should be full financial disclosure typically in the form of a written statement of each party's assets and liabilities, to ensure that each party has had sufficient time to consider their respective financial circumstances in light of either party relinquishing rights that they would have otherwise had absent the Pre-Nuptial agreement. The Statements are typically annexed to the Agreement.
In New York, the Courts have historically reviewed pre-nuptial agreements as binding contracts in that each party has free will not to execute the document or not to go forward with the marriage. They have found that an agreement which is one-sided cannot be the sole basis for setting such an agreement aside. The Court will, however, scrutinize whether the agreement was fair at the time of its execution and not unconscionable at the time of its enforcement. This will also include a review of the document to determine whether it is an authentic document, whether there was full financial disclosure, all protocols were followed, whether both parties had the benefit of legal advice, that the document clearly represents the agreement of the parties , and that the parties properly waived their stated rights and the Agreement controls. The Court, in its discretion can consider whether there has been a change of circumstances which would preclude enforcement of part or all of the agreement.
Given the delicate nature of Pre-Nuptial agreements, when considering your choice of legal representation it would be prudent during your consultation with a prospective attorney, to have a frank discussion as to how they would handle such negotiations of these delicate and challenging issues. Discussing your understanding of how the financial issues will be handled during the marriage is essential as are your respective expectations. Often couples have not fully discussed these issues before they seek the assistance of counsel to draft the document. How those discussions and negotiations are handled can make all the difference with the outcome.
