Who Should Get a Prenup?

Prenuptial agreements are not just the province of celebrity couples whose relationships are splashed across the pages of tabloids. Given changes in laws, differences in net worth between the marriage parties, and the sobering statistic that almost 50% of all marriages end in a divorce, a growing number of couples who are entering traditional marriage relationships are signing prenups before they take their vows.

The family law attorneys at Kantrowitz, Goldhamer, Graifman, Perlmutter & Carballo, P.C. negotiate and draft prenuptial agreements for New York and New Jersey couples who are contemplating marriage. Contrary to either party’s concerns and possible misconceptions, prenuptial agreements are not an indicator of the lack of trust in a relationship, but are a protective mechanism that can benefit both parties regardless of the ultimate outcome of the marriage.

A good prenup agreement addresses both parties’ concerns.

Although a prenup can be limited to only one or a small number of issues, if the parties are putting effort into negotiating and drafting an agreement, they will be best served if they address the most common issues that every marriage might face:

• Distinctions between marital property and assets that will be owned separately by either spouse;
• Protections for one spouse against the other spouse’s debts, particularly with respect to unsecured debts such as student educational loans;
• Dispositions of family property to keep that property from going outside of family ownership;
• Estate planning considerations;
• Orderly distribution of property in the event that a marriage is dissolved;
• Definitions of each spouse’s responsibilities in the marriage, particularly with respect to business and retirement benefits, tax filings, debt and expense management, and dedication to one or the other spouse’s career.

In many cases, addressing these matters early on can help strengthen the marriage by adding clarity and communication before the matter becomes too difficult to handle.

As a matter of law, certain issues will not be enforced in prenup agreements.

Different states vary with respect to issues that are precluded from consideration in prenup agreements, but most states will not enforce certain specific matters:

• Agreements regarding illegal conduct;
• Child support and custody issues (divorce and family courts have the final approval on support issues);
• Certain forms of alimony waivers or limitations, which will be struck down even if they are deemed to be unfair or if they leave a spouse destitute;
• Anything that encourages the parties to separate or divorce;
• Personal matters, such as where the married couple will spend holidays, and which party will be responsible for particular chores.

Considerations of state law are very important in prenup agreements.

Every state treats marriage and divorce differently, and the parties to a prenuptial agreement should consider the effect of a particular state’s laws on their prenup should they need to enforce that agreement at some future time.

New York and New Jersey, for example, favor equitable distribution of marital property in the event of a divorce, whereas other states treat marital assets as community property that is divided equally without consideration of equitable issues. If the parties relocate not a state that treats marital property differently than anticipated, their intentions in their prenup agreement may not be followed if the agreement does not address state law considerations.

In all cases, couples who want a prenup agreement should retain an experienced family law attorney, or ideally each individual should each retain his or her own separate lawyer to jointly negotiate and draft a prenup.

Under certain circumstances, a prenup agreement might be set aside in its entirety.

A prenup agreement may be set aside and a court might refuse to enforce any portion of it, for example, if a spouse failed to disclose all of his or her assets while the agreement was being negotiated. As with contracts in general, fraud, duress, and other conditions that are evidence of unfairness or uneven bargaining power may be grounds to set aside a prenup.

A prenuptial agreement lawyer at Kantrowitz, Goldhamer, Graifman, Perlmutter & Carballo, P.C. can guide you to a fair and equitable agreement that can help form the basis of a strong marriage. Call us directly to schedule a consultation with a knowledgeable and experienced prenup matrimonial lawyer.