Prenuptial agreements are becoming increasingly popular in the United States. While every state holds different regulations about what can and cannot be included in the document, signing a prenup will ensure that separate property is kept secure in case of divorce or death. New York State already has laws in place regarding the division of personal property. If there are specific assets that you want to protect before your marriage, signing a prenup is essential. According to New York State divorce law, if you didn’t sign a prenup disclosing your separate property before marriage, your property will be divided if divorce or death occurs.
Separate Property vs. Marital Property
Separate property refers to any belongings that an individual brings into a marriage. This can range from a family heirloom to a trust fund. Provided that you and your spouse agree to keep these specific assets separate from each other, your property will continue to belong to you, even if the marriage ends. Over the course of marriage, a couple will usually obtain more money/possessions- these belongings are referred to as marital property.
With a prenuptial agreement, you have the ability to classify what is considered your and your spouse’s separate property. The assets that you do not distinguish as belonging to an individual will be considered marital property. It is also important to note that if you acquire an asset during marriage and keep it in your name, it will be considered separate property. On the contrary, if you entered marriage with an asset and added your spouse’s name onto it (a bank account for instance) it would then be considered marital property.
New York State Law on Division of Marital Property
If you and your spouse file for divorce, you will have the opportunity to split assets amongst yourselves. If you cannot agree, marital property will be divided by the court. This includes, but is not limited to: land that was purchased during the marriage, personal possessions that were purchased during the marriage, personal pensions acquired during the marriage and gifts. Once the court establishes what is marital property and what is separate property, the process of appraising and allocating can begin. New York State does not simply divide marital assets in half; rather they follow certain criteria to determine the most justifiable distribution of property. There are also some kinds of property that cannot be divided monetarily, so the court will designate it as a “distributive award”. This is essentially a payment that one spouse must give to the other to compensate for their loss of that asset.
Why Signing a Prenup is Vital for Protecting Separate Property
If you enter into a marriage with no significant assets, it may not be critical that you go through the prenuptial agreement process. However, if you possess a substantial amount of money, it is not your first marriage or you have children, it would be a very good idea to designate your separate property before you get married. Keeping your individual assets in your own name will ensure that they will still belong to you if the marriage were to end. New York State respects prenuptial agreements and will consider their contents when dividing assets. Anything you recorded as being yours will remain yours as long as you sign this document. Nobody expects to get divorced when they get married. But do yourself a favor and protect yourself in case it were to happen.
