PRENUPTIAL AGREEMENTS

     The term "prenup" is generally at odds with the concept of romance. Nonetheless, with about one third of all first marriages,  and about half of all of second or third ones ending in divorce, a prenuptial agreement is often wise financial planning.

     A prenuptial agreement is a contract between two people about to wed that defines how assets will be distributed in the event of divorce or death. Such agreements have existed for thousands of years in some form.

The following are some pre-marital circumstances where a prenuptial agreement is often prudent;

• You have assets such as a home, stock or retirement funds

• You own all or part of a business

• You may be receiving an inheritance

• You have children and/or grandchildren from a previous marriage

• One of you is much wealthier than the other

• One of you will be supporting the other through college

• You have loved ones who need to be taken care of, such as elderly parents

• You have or are pursuing a degree or license in a potentially lucrative profession such as medicine

• You foresee a substantial increase in income.

The agreement should be entered well in advance of the wedding. The document should be signed as early before the nuptials as possible to avoid the appearance of coercion, which may lead a Court to render the agreement null and void.

     The agreement should be fair to both parties.  A Court will look for equity and may disregard the agreement if it appears that a party has been taken advantage of.  Perhaps the most important ingredient of a solid prenuptial agreement is honesty. Both parties must fully disclose their assets. If it turns out either person has hidden something, a Court can render the agreement invalid.

     Absent a prenuptial agreement, dipsoition of marital property and marital debts in the event of a divorce is governed completely by Equitable Distribution Law which is founded on the philosophy that a marriage, especially one of long term duration, is an economic as well as a social partnership.  A valid prenuptial agreement allows you, and not just the Court, to exercise discretion as to how property will be distributed between you and your spouse.

If you have plans to get married, your are encouraged to call this office to schedule a consultation regarding the necessity of a prenuptial agreement.

DIVORCE

     Marriage is a civil contract which the state has an interest in preserving.  Accordingly, a legal marriage can only be dissolved as provided by law. Obtaining a divorce requires a proceeding in the the Supreme Court of New York State in which the spouse seeking a divorce must prove "grounds".

     Grounds are reasons for the divorce, as prescribed by law, that must that must exist and be proven to the Court.  Grounds must be proven even if both parties agree to get divorced and agree on the terms of the divorce.

    Four of the grounds prescribed by law are based on the fault of one of the parties;

• Cruel and Inhuman Treatment

• Abandonment for One or More Years

• Adultery

• Imprisonment for Three or More Years

The other grounds afford a "no-fault" divorce, in which neither spouse is judged to be at fault ad follows;

• One Year Living Apart Under a Separation Agreement or Separation Decree

     Division of assets and fixing of support in connection with a divorce is covered by the Equitable Distribution Law.  The Statute is founded on the philosophy that a marriage, especially one of long term duration, is an economic as well as a social partnership.  Two classes of property were created, known as "marital property" and "separate property".

• Marital property is all property acquired during the marriage, regardless of how title is held, except for

• Separate property is;

  •  all property acquired by either spouse individually prior to the the marriage that has not been commingled with the marital property.

  • Inheritance, gifts from third persons and compensation for personal injuries.

     Marital property and marital debts are distributed between spouses in a dissolution action on flexible and equitable principles.  Valuation of marital property may require expert advice.  Alimony under NY law is referred to as "maintenance" and is based upon factors set forth in the statute and may be permanent or limited in duration.  The distribution of marital property and the award of support as a result of matrimonial negotiations may involve tax consequences to both parties which require expert advice.

If you are contemplating a divorce, your are encouraged to call this office to schedule a legal consultation.