Prenuptial Agreements in NY and New Jersey - Our View
The Prenup Process
Prenuptial agreements enable couples to logically and maturely prepare for the future, and to set forth their mutual expectations. Many prenuptial agreements are entered into for the purpose of protecting particular assets. Ideally, a prenuptial agreement will address the particular concerns of each party, and clarify their expectations. Signing a prenuptial agreement does not suggest that your anticipating a divorce. Indeed, the opposite is true: the ability of a couple to openly discuss financial interests and concerns is a sign of a healthy and mature relationship.
Because New York courts have adopted an unusually broad definition of what constitutes a marital asset, a prenuptial agreement is particularly important for couples who intend to reside in New York. For example, New York courts routinely treat professional licenses, educational degrees, and enhanced earning capacity as marital assets to be shared and divided. A professionally prepared prenuptial agreement enables a couple to set forth, based on their priorities, the items that they wish to treat as marital property, and the manner in which such property shall be divided in the event of divorce.
Under New York law, a couple may enter into a prenuptial agreement that designates as separate property assets that may otherwise be considered marital. However, it is essential that an agreement be carefully prepared by an experienced matrimonial attorney, because the document must unambiguously set forth the parties' intention to override the general rules of equitable distribution. In a recent decision, New York's Appellate Division (1st Dept.) emphasized that if parties which to deviate from the rules of equitable distribution, their prenuptial agreement must memorialize their intention to define marital property, or provide for distribution of such property, in a manner that differs from the approach that would be used in the absence of an agreement:
[T]he intent to override the rules of equitable distribution - whether by express waiver, or by specifically designating as separate property assets that would otherwise be considered marital property under New York law - must be clearly evidenced by the writing. Strong v. Dubin, 75 A.D.3d 66 (1st Dept. 2010) (quoting Tietjen v Tietjen, 48 AD3d 789, 791 ).
If you are getting married, attorney Marc Rapaport can help you draft a prenuptial agreement that complies with New York's legal requirements. Mr. Rapaport has practiced matrimonial law in New York since 1995, and he has extensive experience in the preparation, negotiation, and execution of prenuptial agreements in New York.