There is a skewed view of Brooklyn prenuptial agreements as being something of a weapon for wealthy spouses, eager to shield deep coffers from the hands of their less rich, less sophisticated partner. And of course, there is the notion that such agreements are deeply unromantic, undercutting the notion that marriage is forever, which is what you agreeing to when you enter the union.
In reality, a good prenuptial agreement can do a lot to protect both spouses. Ultimately, it can save both parties a lot of time, energy and money that might otherwise be spent waging a bitter battle if things don't work out as planned (as will be the fate of at least 50 percent of all marriages).
For example, a well-written prenuptial agreement can ensure children from prior marriages are protected according to your wishes should something happen to you. They can also shield both parties from joint liability debts. So for example, if the wife is the subject of a malpractice claim, a prenuptial agreement could protect her husband from extensive legal responsibility should she lose that case, thereby preserving assets for both spouses. Additionally, the contract can be beneficial in terms of titling marriage assets for the purposes of estate tax planning.
But of course, broaching the subject of a prenuptial agreement remains a delicate subject. Even for a couple who talks about everything, simply raising the subject for discussion can be thorny. So what is the best way to go about it?
First, we recommend raising the issue shortly after the engagement. In an ideal world, this is something that would be negotiated and signed well in advance of the wedding invitations going out. Bombarding your intended with an agreement in the days or even weeks before the ceremony can make them feel as if they have been ambushed. This is no way to begin your journey together. You want to both be on the same page and comfortable with the terms of the agreement. Neither of you should sign anything until the agreement has been reviewed by two separate attorneys - one representing each of you - to ensure the agreement is mutually beneficial and each of your assets and interests are protected.
Secondly, when you approach the conversation, make sure you are honest and forthright. Perhaps you have a family history of nasty divorces. Maybe you have children from a prior marriage and you want to make sure they are protected. In some instances, you may have an inheritance you want to shield. Whatever the case, be open. Your new spouse will respect you more for it and it will likely make the process move more smoothly.
Bear in mind also that another reason to be upfront is that there has to be full disclosure in order for a prenuptial agreement to be considered valid. That means you are going to have to let your new spouse know how much you earn, how much you're worth and the extent of your assets. Again, ideally these would be discussions you would have already had, but at the very least, you will have to disclose them prior to signing the agreement. Keep in mind that if your spouse doesn't acknowledge certain property as separate at the time you married, he or she can always come back and later claim it was marital property, meaning it could be subject to division.
Be prepared for some level of negotiation. Try to approach this with a mature and open mind and with the legal advice of an experienced family law attorney. This means you will need to consider too any possible changes up the road. For example, both parties may be self-sufficient at the moment, but it's possible that once children come along, one could choose to become a full-time, stay-at-home parent. Your agreement should encompass these kinds of contingencies.
Finally, do your best to be reasonable. Remember: This is the person you want to spend the rest of your life with. A good prenuptial agreement will ensure that both parties walk away happy - and together.
If you are interested in learning more about how to draft a prenuptial agreement in Brooklyn, call our offices at (718) 864-2011.
How to Request a Prenuptial Agreement and Still Get Married, Jan. 24, 2014, By Daniel Clement, The Huffington Post