Jewelry, Cars, Heirlooms, Gifts, and the Need for a Prenuptial Agreement or Post Nuptial Agreement
Everyone who intends to marry in New York needs a prenuptial agreement for one very important reason, among others.
New York’s equitable distribution law currently includes gifts given by spouses to one another during the marriage as marital property. Marital property is subject to distribution as a result of a divorce. While the equitable distribution law exempts property acquired by gift from the definition of marital property, that exemption only applies if it is acquired from someone other than a spouse.
Even property that would be classified as separate and not subject to equitable distribution upon divorce, such as an heirloom ring given to a spouse by another family member or inherited property, that separate property can become marital property if a spouse gives it to the other spouse as a gift during the marriage.
A prenuptial agreement makes sense for everyone because it can be drafted to preserve the character of all gifts given between spouses during the marriage as their separate property.
So with a prenuptial agreement, if your husband buys you that diamond tennis bracelet during the marriage, you can sleep easy knowing he will not be able to ask for a portion of its value if there is a divorce.
Similarly, if your wife buys you that antique car, the agreement will bar a claim for a portion of the value of the car.
Remember, a divorce judge has the power in New York to order the sale of marital property if the parties cannot agree on a disposition of the marital asset.
If you are already married, you can still address the gift issue with a post-nuptial agreement.
Prenuptial and post nuptial agreements should be professionally drafted and signed under the supervision of an attorney to ensure validity. Many prenuptial and post nuptial agreements are set aside because of defects in form, acknowledgment and notarization.
Feel free to contact the Law Offices of H. Michael Stern for a Free Consultation, if you are interested in preparing either a prenuptial agreement or post nuptial agreement.
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