The Art of the Prenuptial Agreement: Part 1

The Art of the Prenuptial Agreement: Part 1 by Joshua Katz

{3:05 minutes to read} “I want a prenuptial agreement.”

What a fiancee actually hears: “I want to marry you, but I kind of don’t believe that our marriage is going to last, and therefore I want to protect myself when we decide to divorce.”

A prenup is hardly a romantic gesture; however, it is a practical one, especially given the statistic that more than half of marriages end in divorce!  

Despite its bad reputation, a prenuptial agreement protects against commingling. It is a lot easier to plan an amicable separation while a couple is madly in love instead of during an acrimonious divorce. Statistics show that only 5% of divorcing couples have a valid prenuptial agreement, yet over 15% of divorcing couples WISHED they had signed a prenup.  

Understanding a Prenuptial Agreement

Generally, any asset that is accumulated during a marriage is subject to equitable distribution in a divorce. Although the Equitable Distribution Law does recognize property that a spouse had premaritally as separate, there is a danger of commingling or claims against the appreciation on separate property.

A prenuptial agreement is used to protect certain assets that are coming into the marriage and ensure that those assets unequivocally remain separate property.

With a prenuptial agreement, the judge does not have decision-making power. Upon signature, the spouse waives his or her rights to an equitable distribution claim, regardless of how much hard-earned money or time was invested in a property.

For example, if a married couple lives in a home that belonged to the husband prior to marriage, the wife can make a claim against some of the appreciation if she can prove that she contributed to the increase in property value over the course of the marriage. With the protection of a proper prenup, the parties could agree that unless specifically added to the property deed, the wife will have no right to the interest in that property.

The Prenup in Practice

A prenup must be artfully drafted so that it will not be challenged in the event of a divorce, and both spouses should be represented by independent counsel.

Most importantly, the prenuptial agreement should be signed, sealed, and delivered before wedding invitations are sent out.

Stay tuned for Part 2 of this series where we will discuss new trends in New York State as well as surprising uses for prenuptial agreements.

Please contact us with your questions about prenuptial agreements!

Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415

Leave a Reply

Your email address will not be published. Required fields are marked *