How Do Prenuptial Agreements Work?
Prenuptial agreements allow couples, before the marriage takes place, to control how their assets would be distributed if they ever divorced. Creating a prenuptial agreement ensures that what is yours remains yours, and vice versa for your fiancé.
What are the Benefits of a Prenuptial Agreement?
There are many benefits to a prenup agreement. Most importantly, the parties dictate what occurs with their property rather than a court making that decision.
In addition, each state has their own laws that determine what will happen to the marital estate if the spouses divorce or one passes away. With a valid prenuptial agreement prepared by an experienced and qualified attorney, the court will follow the wishes that the parties spelled out within the document. New York has a public policy to uphold such agreements and respect what the couple agreed to unless there was fraud on the part of at least one party, or unless the prenuptial agreement was not prepared properly (such as can be the case wherein a party chooses not to utilize an attorney).
The list of advantages goes on. Parties may waive or limit spousal support, also known as maintenance or alimony. If any spouse has debt prior to entering the marriage or acquires debt post-marriage, the agreement can determine who is responsible for such debt. Spouses may wish to keep certain property only titled to them such as a childhood home they owned prior to the marriage or a painting with a large monetary value.
Under New York law, without a prenuptial agreement, when you get married you can not outright or completely disinherit your spouse. That is, without a prenuptial agreement, a spouse can inherit a certain percentage of your assets automatically even if you do not mention your spouse in your will, or even if you limit their inheritance in your will. On the other hand, with a prenuptial agreement prepared by the attorneys at Novak & Novak, you can be assured that who you want to receive a certain asset will get receive that asset as per your will, as opposed to your spouse via operation of law.
For example, if you have a marital home, and a rental property, and you desire, as per your will, that the marital home to go to your spouse, and the rental property to go to your son, without a prenuptial agreement your spouse can possibly inherit a portion of the overall the estate by virtue of the marriage. In the event that you have a properly prepared prenuptial agreement in place before the wedding day, in the aforementioned example, you can guaranty that the marital home only goes to your spouse and that the rental property goes to your son. At Novak & Novak our attorneys are experienced in ensuring that your will, or another type of estate plan that fits your needs, combined with a prenuptial agreement will determine how your assets would be distributed.
Are Prenuptial Agreements Enforceable?
Courts in New York do recognize a properly drafted and executed prenuptial agreement. Prenuptial agreements are enforceable in New York, provided they are properly prepared and executed. Having a licensed New York State attorney with experience preparing these instruments is a crucial step to obtain a valid and enforceable prenuptial agreement.
A prenuptial agreement is valid and enforceable as long there is full financial disclosure between the parties. In addition it must be executed and acknowledged with the full formality required for a property deed to be recorded. At Novak & Novak we will walk you through the entire process and ensure that your prenuptial agreement is properly prepared but also properly executed as well.
In addition to the above, there are several additional factors that we will advise you on to strengthen the enforceability of your prenuptial agreement. We have devoted our practice to prenuptial agreements, and upon retaining our firm, you will receive the benefit of our experience and expertise. The first step is to call us 800-600-2840, and obtain a free one-on-one attorney consultation.
What are the Requirements of a Prenuptial Agreement?
The requirements of a prenuptial agreement are relatively easy to understand. The agreement must be signed in writing since it is a contract.
Disclosure is a critical component of prenuptials because it demonstrates that both spouses entered the agreement voluntarily and with knowledge of the rights they are waiving. It is in your best interest to have an attorney guide you on how to most accurately disclose your financial assets & liabilities. In this way, you actually protect yourself as completely as you can within the prenuptial agreement.
The next requirement includes that the agreement must be notarized and done in a timely manner. When the parties sign their agreement, the next step is to have the document notarized. Although this is a simple step, courts have invalidated agreements that lack the proper execution and notarization. This again is another reason that you should only have a) an attorney prepare or review your prenuptial agreement and b) only use an attorney that specializes in prenuptial agreements such as the attorneys at Novak & Novak.
Can I Obtain a Prenup Right Before the Wedding Date?
A common question that we receive from clients concerns the timing in terms of how close to the wedding date a prenuptial agreement can be executed. This “timing question” is best answered by a qualified attorney that has experience with prenuptial agreements.
In the event the wedding date is fast approaching, do not believe what you read online from unqualified sources or from individuals or companies that are not licensed attorneys in New York State. In time sensitive situations, call the attorneys at Novak & Novak for a free consultation at 1-800-600-2840 to obtain the correct information to ascertain if it is still possible to achieve the goal of obtaining a valid and enforceable prenuptial agreement. In addition, at Novak & Novak, we do offer an expedited preparation or expedited review service when time is of the essence.