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Do I Need a Prenuptial Agreement?
March 2, 2009

You might be surprised to find out that despite your level of income or assets, you may need a prenuptial agreement.

Many people fail to consider signing a prenuptial agreement because they mistakenly assume that such agreements are only appropriate or necessary for especially wealthy individuals or couples. Others overlook the option of executing such an agreement simply because the topic is a difficult one to broach and they do not want to risk offending their future spouse. In reality, people of all income levels can benefit from a prenuptial agreement and it can be executed in an amicable way with the cooperation and education of both parties.

A prenuptial agreement should not be seen as an anticipation of divorce or separation, but simply as a means of planning for the future and protecting the parties in a worst-case-scenario. It is no secret that the divorce rate in this country is relatively high, usually reported at a rate of around 50%. Therefore, it is no surprise that more couples are choosing to protect themselves with prenuptial agreements today than ever before.

WHAT IS A PRENUPTIAL AGREEMENT?

A prenuptial agreement, sometimes referred to as a premarital agreement or an antenuptial agreement, is simply a contract entered into by two individuals before their legal marriage in which they resolve various issues of support and/or property division should their marriage end in a divorce. These agreements can also resolve such issues in the event of the death of one of the parties. The terms can range from very specific to the very broad. For example, an agreement can predetermine whether either party will be entitled to spousal maintenance, which party will be responsible for payment of a mortgage, or even whether a party will be entitled to a portion of the others pension. Every agreement will be unique and specific to the needs of the parties.

Despite the flexibility and discretion given to the parties in regard to the terms of the agreement, the law dictates the formalities of the agreement and execution. According to New York’s Domestic Relations Law §236(b)(3), all prenuptial agreements must be made in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Oftentimes, the parties will also complete and attach a copy of a sworn Statement of Net Worth, (sometimes referred to as a Financial Affidavit) to their prenuptial agreement in which they disclose all of their assets and liabilities.

Overall, a prenuptial agreement will allow a divorce proceeding to proceed more efficiently. Most importantly, it can reduce and alleviate a lot of the stress individuals normally experience during a divorce proceeding, as most of the terms normally disputed or contested in a divorce have already been dictated by the parties in the agreement. This, in turn, can also save the parties a great deal of time and money in attorney’s fees. A prenuptial agreement will also remove a lot of the uncertainty normally experienced during a divorce, as it allows the parties to control and decide who gets what in the event of divorce, as opposed to allowing the law to decide for them.

WHO SHOULD CONSIDER A PRENUPTIAL AGREEMENT?

As previously mentioned, individuals with any level of income or assets can benefit from signing a prenuptial agreement. Others that might consider protecting themselves with an agreement include:

  • Those individuals with children of a previous marriage or relationship.
  • Those individuals with retirement accounts and investments such as stocks and bonds.
  • Those individuals that will potentially earn a degree or professional license during the marriage, or in the alternative, those who plan on supporting their future spouse while they attend college/earn a degree or professional license during the marriage.
  • Those individuals that earn/anticipate earning considerably more income than their future spouse.
  • Those individuals that own/anticipate owning considerably more assets than their future spouse.
  • Those individuals that own or have an interest in a business.
  • Debt of the parties should also be considered when contemplating a prenuptial agreement.

Of course no one expects their marriage to end, but the unfortunate reality is that a divorce can be unpredictable. No matter how large your estate or level of income, a prenuptial agreement can help protect you and your loved ones. In the end, a little bit of planning today can help save you a great deal of time, money and effort in the future.

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