How a Prenup Lawyer Can Help You Protect Your Assets in New York City

A prenup lawyer will help you draft a prenup agreement in an efficient and effective way. Prenups are not just contracts. With its execution can come a lot of emotional drama between the future spouses, especially when one spouse does not want a prenup while the other wants it.

A prenup lawyer should not only just draft the prenup agreement but should do so in a sensitive manner with the goal of having both parties, happily agreeing on signing the prenup. Because in the end, if the prenup is not signed or the marriage is not celebrated, the prenup is not valid.

If you are looking for a prenup lawyer, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Requirements that a prenup lawyer must observe

To be valid, a prenup in New York must be:

1. in written form;
2. signed by the future spouses before the marriage; and
3. notarized

The future spouses must also marry in order for the prenup to be valid. If the future spouses sign a prenup and then break up before getting married, the prenup is not valid or enforceable.

A prenup lawyer may question or challenge a prenup before the court, even if it complies with the above requirements, on the following grounds:

• Attorney conflict of interest – The future spouses used one attorney and the prenup is unfair for one spouse and in favor of another.
• Fraud – One future spouse misrepresented his assets and financial situation.
• Unconscionable – The prenup was severely unfair and inequitable at the time it was signed. For example, a prenup that has left one spouse with absolutely nothing during divorce can be considered unconscionable.
• Coercion or duress – One future spouse was forced to sign the prenup under pressure or was not given enough time to review the prenup before signing. However, the threat not to marry if the prenup is not signed is not considered duress or coercion.

Why you may want to get a prenup lawyer

Although there are many prenup agreement templates on the internet, a prenup agreement should be tailored and customized to your needs, your assets, your debts, and your state law. It even becomes more complicated when the two parties come from different countries or there are assets in different states or countries. Registration might be required depending on the situs of the properties, and this registration is needed as public notice to bind third persons. A prenup lawyer will help you navigate the laws or different laws that apply in your case and draft a prenup agreement that is customized to your situation.

When will a prenup lawyer advise the need for a prenup

If you are in one of the following situations, you may want to consider a prenup:

One future spouse is wealthier than the other.

Although one might think that the prenup will not benefit the poorer spouse, this is a wrong impression. A prenup can also benefit the poorer spouse because the poorer spouse can already negotiate on issues of spousal support or alimony. Usually, an “escalator clause” is inserted in a prenup to make the amount of support or alimony dependent on income or the number of years the couple is married.

You have children from a previous marriage.

In New York, the spousal right of election entitles a spouse to the greater of $50,000 or 1/3 of the net estate upon the other spouse’s death. To go around this provision, a future spouse can waive this spousal right of election in a prenup, allowing you to leave a majority of your estate to your children from a previous marriage. If this is not addressed, when you die first before your subsequent spouse, your spouse may inherit most of your property, and when she dies, it goes to her heirs (who are not your children from a previous marriage).

If you were not able to address this in a prenup, you can still execute a post-nuptial agreement with your spouse. If your spouse refuses to sign a post-nuptial agreement, you can consult an estate planning lawyer on the use of a qualified terminable interest property (QTIP) trust.

You would like to identify which property is separate and which property is marital.

A prenup allows the spouses to determine which property is separate and which property is marital. For example, you use a prenup when you have a business or you have a sizeable inheritance you expect to receive in the future that you’d like to keep as separate property. You can also state that income from this particular source is separate while income from another source is marital.

Remember however that, despite the fact that you have identified certain property as separate or marital in a prenup, your actions during the marriage can make separate property be deemed marital. For example, if you have a house that you already purchased prior to the marriage, and during the marriage, you transfer the title to both you and your spouse, the house may be deemed to be marital property because you are considered to have made a gift to your spouse. Another example is, if you receive inheritance from your deceased father during the marriage, this is considered separate property. However, if you place this money in a joint account with you and your spouse as account holders, instead of putting it in a separate bank account in only your name, the inheritance you received, though considered separate property, may be considered marital due to your actions.

One spouse has a significant amount of debt.

If your future spouse has a significant amount of debt, such as student debt, you might want to get a prenup. Although debt prior to the marriage is considered separate debt, any property and income acquired during marriage is considered marital property in New York. Thus, if you are the higher income earner, in the event of divorce, your spouse will own half of what you both have accumulated during the marriage which can answer for his separate debt. If you want to make sure that your money is not used to pay for someone else’s debt, you need a prenup.

What should a prenup lawyer include in a prenup

The prenup lawyer should draft a prenup that at least addresses the following issues:

• the identification of marital and separate property, including the classification of future property;
• the amount of spousal support or alimony;
• child custody, child support, and visitation issues;
• establishing debt incurred prior to the marriage;
• establishing support for children of a prior marriage;
• protection of pension and retirement accounts; and
• protection of business and intellectual properties.

If you are engaged to be married and have debt or property, you should discuss with your spouse these financial issues and consider discussing your options with a prenup lawyer. When you have significant debt or property or children from a previous marriage, a prenup lawyer can help you draft a prenup agreement that will prevent a contested divorce, saving you legal expenses in the future.

How the prenup process actually works in New York

A well-drafted prenuptial agreement is built over weeks, not days. A typical New York process looks like this:

• Each future spouse retains independent counsel. Using separate lawyers is the single most important step toward enforceability.
• Both parties exchange written, sworn financial disclosure - typically a Statement of Net Worth or a substantially similar document - listing assets, liabilities, income, and expenses. Attached documents normally include recent tax returns, pay stubs, account statements, and appraisals of significant property.
• One lawyer prepares an initial draft. The other lawyer reviews it and proposes revisions. Negotiation follows.
• The final agreement is signed well in advance of the wedding - not the morning of the ceremony - and acknowledged before a notary public in the form required to record a deed in New York.

Starting early is critical. A prenup negotiated and signed three to six months before the wedding looks very different in court than one signed forty-eight hours before the rehearsal dinner. Time pressure feeds duress claims.

Why timing and acknowledgment matter

New York requires the parties' signatures on a prenup to be acknowledged in the formal way required for recording a deed. A simple notary jurat is not enough. A prenup signed without proper acknowledgment has been thrown out by New York courts. Your prenup lawyer should walk you through the acknowledgment language and confirm that the notary is using the correct certificate.

What a prenup can and cannot do in New York

A New York prenup is a powerful tool, but it does not control every issue.

What it can do

• Classify pre-marital and future-acquired property as separate or marital.
• Waive or limit spousal maintenance (subject to the requirement that the waiver not be unconscionable at the time of enforcement).
• Waive the surviving spouse's right of election under New York's Estates, Powers and Trusts Law.
• Set terms for the disposition of a closely-held business, professional practice, or inherited assets.
• Establish how appreciation of separate property will be treated.
• Allocate responsibility for pre-marital debt.
• Provide for life-insurance maintenance, estate-plan obligations, and similar protections.

What it cannot do

• Predetermine child custody or a parenting schedule. Custody is always decided based on the best interests of the child at the time of separation.
• Set child support below the presumptive Child Support Standards Act amount in a way that binds the court. The court can disregard a child-support provision that is not in the child's best interest.
• Penalize a spouse for filing for divorce, having an affair, or other "lifestyle" conduct in a way that crosses into being punitive or unenforceable.
• Include provisions that violate public policy.

Postnuptial agreements: prenups' close cousin

If the wedding has already happened, the same goals can often be achieved through a postnuptial agreement. Postnups are governed by the same statutory framework as prenups in New York and must meet the same writing, signature, and acknowledgment requirements. Courts scrutinize postnups closely - because the parties are already married and one may have economic leverage over the other - but a properly negotiated postnup with full disclosure and independent counsel is generally enforceable.

Frequently asked questions

Does my fiancé(e) really need their own lawyer?

Strongly recommended. Independent representation is the best defense against later challenges based on coercion, lack of understanding, or conflict of interest. A prenup signed by a spouse who never had counsel is far more vulnerable to attack.

How long does a prenup take to negotiate?

Plan on six to twelve weeks from the first draft to a signed agreement. Complex estates, international assets, or business interests can extend that timeline.

Can a prenup be updated later?

Yes, by executing an amendment with the same formalities as the original, or by signing a postnuptial agreement that supersedes the prenup. Couples sometimes revisit their agreement after the birth of children, a major liquidity event, or an inheritance.

Should you need a prenup lawyer, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].