The topic of prenuptial agreements can be quite loaded and elicits strong feelings on both sides of the issue. As a wise old soul once said, ‘that’s why they make chocolate and vanilla.” Prenups aren’t to everyone’s taste. But maybe that’s because people don’t know enough about them and what they actually do.
When New York couples divorce without a prenup in place, they are subject to the laws and guidelines of state law and a judge’s interpretation of them. This is the path toward divorce most New Yorkers took in the past. It’s more of a one-size-fits-all option with not a lot of flavors to choose from.
Increasingly, more New Yorkers are choosing to get prenuptial agreements. These people tend to be more outside of the box thinkers who want to define the terms of any future divorce and not have the terms dictated to them by the state or a judge. To continue with the flavor analogy, they don’t want a chocolate or vanilla divorce, rather they want to craft a prenup that allows for pistachio or rum raisin.
A prenuptial agreement is a contract signed by future spouses before they are married. Typically, they address how property will be divided in case of divorce. They can also cover the issue of spousal support to be paid after the marriage. Specifically, a prenup can state if spousal support will be paid and if so, how long and under what conditions.
Spousal maintenance, which used to be called alimony in New York, refers to the money one spouse pays to the other after a divorce has occurred. This maintenance is typically paid for a specific period of time.
If there is no prenup in place, courts will consider several factors when determining how much maintenance will be paid and for how long. The factors can include:
If the couple can’t come to an agreement, they could be in for a protracted and very public legal slog. This is not an optimal outcome.
Understandably, couples don’t like to think about this possibility before they get married. But it’s such a smart move to get ahead of any potential conflict. With a prenup, an expensive legal battle with emotions running high on both sides could be avoided.
Prenuptial agreements give couples the ability to make a variety of provisions for spousal support that work best for them. Some possible scenarios are:
An experienced New York family lawyer will be able to advise you on possible provisions to consider.
Every New York couple is different and your prenuptial agreement can reflect your unique circumstances. That being said, many maintenance provisions contain a variation of the following terms:
It’s important to remember that a judge can override the prenup if they feel it’s unfair to either party.
The prenuptial agreement can also set out conditions that will terminate payments before the scheduled payment period has elapsed. For example, the prenup can state that maintenance can be terminated if either of the parties dies or if the spouse that is receiving the payments gets remarried or lives with someone for a period of 6 months or more.
Some couples also choose to include something called a sunset clause in their prenups.
This provision says the prenup will no longer be enforceable after the couple have been married for a certain amount of time. So if the sunset clause applies after 10 years and the couple gets divorced after 20 years, their property will be divided under New York law and not the prenup.
You’ve found your forever person and want to get married and that is fantastic. Hopefully you will have a long and happy life together. But, just in case, it’s smart to lay out the ground rules for what will happen in case things don’t work out. It could save you vast sums of money and a world of psychic energy.