Asset protection refers to the concept of and strategies for guarding one’s wealth, especially in relation to marriage, divorce, and family law. When married couples are going through financial issues, an asset protection tool such as a postnuptial agreement may alleviate stress and make things easier for both spouses. Additionally, partners planning to wed may decide they want to act preventively and look into a prenuptial agreement.
When making these agreements, it is essential to have terms that provide both parties a higher level of comfort. Pressuring a partner into signing an agreement can lead to many issues down the road, and the validity of the agreement may be later challenged in a divorce situation. In a famous example, Nicole Young claimed her prenuptial agreement with Dr. Dre was not valid because she had been pressured into signing it.
Full Disclosure When Making a Marital Agreement
If a married couple is going through a divorce and there was no agreement made prior, the division of assets as well as debts must be addressed. Each party must present a detailed financial statement because a lack of transparency can raise more issues. Provisions can also be made for families with special needs, like if one of the spouses has a disability. The main goal of these agreements is to predetermine the division of assets in the case of divorce, in a reasonable and rational manner so the agreement holds up when scrutinized by the court.
What is a Simple Divorce?
All divorces in New York involve analysis of at least two major financial issues : maintenance (or spousal support) and equitable distribution. When children are involved, custody, visitation, and child support are additionally involved. A simpler divorce is considered to be a divorce that involves no children, no contested assets, no liabilities, and so forth — essentially, both parties just want to go their separate ways.
When Assets Need to Be Split
Both spouses need to identify the separate and marital property to be distributed in divorce if they want to make a truly thorough postnuptial agreement. Separate property is the property owned by one spouse individually, such as property they owned before the marriage, a gift from a third party, or an inheritance. Marital property is assets and property acquired between the date of marriage and the date a divorce action is commenced. In “equitable distribution” states, such as New York, marital property is divided “equitably” during divorce, which does not necessarily mean equally.
No Early Decisions for Child Custody & Support
When custody is involved, the court must decide how to proceed by prioritizing the best interests of the child. Marital agreements cannot decide child-related issues since the best interests of a child cannot be decided ahead of time. The input from parents can be considered, but it is not a deciding factor. For example, a parent may be fighting for custody just so they don’t have to pay child support.
Removing Social Stigma Around Marital Agreements
You have probably heard about prenuptial and postnuptial agreements in the past, and likely in a negative context. At some point, marital agreements such as these were unfairly given a poor reputation. People began to assume that a prenuptial agreement signified a lack of confidence in the staying power of a marriage, and that it was just a matter of time before an eventual divorce.
As more people are exposed to the concept of a prenuptial agreement, and with the increased access to reliable family lawyers, the negative perception of marital agreements has significantly declined. Also, the change in the financial makeup of our society, with more women in the workforce with income and assets of their own, and with people getting married later in life after they have established careers and accumulated assets, prenuptial and postnuptial agreements have grown more common while still being as useful as ever, if not more so.
Not Sure What to Do? Talk to a Lawyer
Various factors will be taken into consideration to determine how asset distribution will occur in a divorce. Even with a prenuptial or postnuptial agreement, the courts will have to review the matter, which could ultimately lead to trial.
In all cases, it is important to find a trustworthy and experienced attorney to act as your legal guide from start to finish. At Wisselman, Harounian & Associates, P.C. people on Long Island, Queens and the entire Metro NY area trust us to make their divorce processes go as smoothly as possible. You do not need to worry when we are acting on your behalf.
Call (516) 406-8500 now to discuss any of your prenuptial or postnuptial questions with our team.