And although some of these topics may be uncomfortable to discuss and even more uneasy to take action, they should definitely be given some extensive attention to when making wedding plans. Marriage is seen as an economic partnership and the parties should therefore give considerable thought to financial issues. And although many of us squirm with the thought of discussing money and finances while in a state of pre-marital bliss, the possibility of losing everything if the marriage does not work should change that.
Here is a list of the most important issues to address:
1. The Engagement-
Under New York laws, once you accept your significant other’s engagement ring, you may be directed to return it if the marriage never happens. The law of contracts and “gift” governs what should happen to the engagement ring if the wedding is called off. New York acknowledges a promise to marry as a legal contract, and therefore failure to marry is considered a breach of contract. However, New York abolished causes of action for breach of such contracts where monetary damages were sought. Consequently, the “heart balm” statute, (Civil Rights Law 80b) was developed to do away with such recourse. Under this statute, one can recover the chattel (in this case the engagement ring) when the sole “consideration” for the exchange of the chattel was the anticipated marriage and that marriage does not occur. Furthermore, New York follows the “conditional gift” approach, which states that an engagement ring is a gift conditioned on an occurrence, in this case the marriage, and if the marriage does not occurs the gift should be returned. Although some states take into account which party broke off the engagement, New York does not.
2. Prenuptial Agreement-
In New York a binding legal contract that defines the rights of the parties upon divorce, is considered valid when the agreement meets certain criteria: 1) it is in writing 2) it is signed by both parties and 3) the agreement is “acknowledged” before a notary public (not just notarized) and contains a written acknowledgement. (General Obligations Law, Title 3 and Domestic Relations Law 236) However, the prenuptial agreement may not be upheld by the court if the judge believes that one side was pressured into signing and had no real bargaining power at the time; the agreement was not “fair and reasonable” at the time it was made; at the time it was to be enforced it was so one-sided that it would be unfair to uphold it; or one of the parties hid important financial information from the other at the time of the agreement. Prenuptial agreements are typically voided on the basis of being “unfair and unreasonable” in New York. The statute of limitations for challenging a prenuptial agreement is now six years from the commencement of the marriage.
3. Cohabitation Agreement-
These agreements address the rights of the parties who are not married, but live together. In New York, the agreement is a binding legal contract when it is in writing, signed by both parties and expressly states the material terms of the agreement. (General Obligations Law, Article 5) Unlike prenuptial agreements, the cohabitation agreement is not governed by the Domestic Relations Law. However, there may be other statutory provisions that apply to issues in the cohabitation agreement, particularly wills, healthcare proxies, living wills, power of attorneys and property division.
4. Separate Property or Marital Property-
Establishing what is separate property and what is marital property can be addressed in several ways. Once parties wed, property acquired and income earned becomes subject to distribution upon divorce. Identifying separate property, property brought into the marriage by each party, can avoid “transmutation” or “commingling” of that property, thereby avoiding distribution to the other spouse. Prenuptial agreements, cohabitation agreements, trusts, wills or named beneficiaries on life insurance policies, bank accounts, etc. should clearly specify which property will be excluded from distribution of marital property, in the event of divorce. Gifts, inheritances, transfers and property acquired before the marriage should all be classified as separate property even before the marriage commences.
5. Stepchildren & Child Support-
Taking on the role as stepparent may thrust one in the position of financial provider even after divorce. (Family Court Act, Article 4) A stepparent can be directed to provide child support for his/her stepchild(ren) if they provided financial support for the child(ren) while married to the child(ren)’s custodial parent, if the custodial/biological parent is still alive and unmarried and if the children would become dependent on public assistance without the support of the stepparent. However, that support obligation usually ends once the biological parent dies or remarries.
6. Stepchildren & Child Visitation/Custody-
Stepparents do not have an absolute right to child visitation with stepchild(ren) (although there are instances where this is not the case). (Family Court Act, Article 4, 5 & 6 and Domestic Relations Section 240) However, the parties may agree to child visitation with stepchild(ren) as part of a divorce settlement. Nonetheless, there is no statute that grants stepparents “legal standing” to sue for child visitation with their stepchild(ren). Even in instances where there is a relationship between stepparent and stepchild(ren), the biological parent has the fundamental right to determine who should have visits with or custody of their child(ren), when the petitioning party is a non-relative. However, stepparents may petition the court for child custody of stepchild(ren), where the court finds that there are “extraordinary circumstances” like abuse/neglect or domestic violence and the stepparent is determined to be the more “fit” parent.
7. Providing Care for Existing Family-
Where there are children from a previous marriage/relationship or dependent elderly parents, caring for them financially, emotionally or physically may need to be addressed by prenuptial agreements, antenuptial agreements, trusts, wills or named beneficiaries. Assuring that loved ones are cared for are concerns that should be addressed early on since the rights of the new or acquired family can obliterate the rights of the existing family members.
It is advisable to discuss as many details and be as upfront as possible before exchanging vows. Addressing these sensitive topics can only serve to minimize conflict, save time and money and cut down on the post-divorce readjustment.