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Do I need a Prenuptial Agreement?

That is a good question to ask yourself before you walk down the aisle…

“Prenups” are not for everyone and they certainly are not the most romantic subject to bring up with your fiancé.  However, they can be a powerful and useful planning tool before you get married.  In fact, prenups can be utilized for spouses to be who do not have any significant assets at this time but expect to acquire assets in the future.  In a prenuptial agreement, you can “carve out” certain current or future assets as separate property.  For example, a prenup can say that any property held or titled in his/her separate name will be considered separate property and will not be subject to equitable distribution (will not be divided at trial) and that any property held or titled in joint name will be considered marital property subject to equitable distribution.

Additionally, Prenups can also be used to opt-out of a current statutory scheme that may control when you get divorced.  For example, a lot of people do not realize that  in New York State spouses may be awarded a monetary award representing the value of a degree that one spouse earns during the marriage.  If one spouse goes to medical school and obtains a degree and license during the marriage, the enhanced earnings from that degree or license would almost certainly be considered a marital asset subject to division.  A couple that is about to get married may not think that this law is fair for their particular situation and may choose to alter this rule.  Perhaps, they want to decide what, if anything, the spouse that did not earn the degree will obtain upon divorce, for example nothing, a flat dollar amount, or a certain percentage of the value of the degree/license.

Incidentally, if you are interested in reading more on the subject of equitable distribution of degrees and licenses earned during the marriage, this is an interesting and important case decided by the Court of Appeals on the subject.  Click here: O’Brien v. O’Brien

Most people utilize prenuptial agreements to protect future and current assets and property acquired from those assets.  However, you can also include child support and custody provisions in a prenup.  However, do not expect the custody or child support provisions to be “set in stone” as New York Courts often modify arrangements to make sure children are adequately supported and that the custody arrangement is in the best interests of the children.  Courts have a lot of power and discretion when it comes to these matters and looking out for children.

The terms of a prenup will control in the case of a divorce and all terms and conditions should be carefully considered before signing a prenup.  You cannot predict the future but it is a wise idea to  consider various possible future scenarios that may occur when you review the terms of a prenup and before you sign a prenuptial agreement.  It is strongly suggested that you consult with any divorce attorney who has seen many of these scenarios unfold and can assist you with the process of protection yourself from future contingencies.

Please call Elliot Danziger of Danziger Legal PLLC today to discuss the drafting or review of a prenuptial agreement today.

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