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Prenuptial AgreementPrenuptial agreements are gaining in popularity even, according to one source, at a fivefold increase, despite the fact that almost two-thirds of those surveyed believe that a prenup would weaken their relationship and likely increase their chances for divorce.

Indeed asking for (read: demanding) a prenuptial agreement creates significant risk to the pending nuptials and, for many, provides no real benefit while simultaneously creating substantial risk. Although there are situations (outlined in Part II of this series) in which an agreement’s benefits outweigh its psycho-social risks, asking for one should never be a mere casual decision. Its costs are too high. Moreover, like a self-fulfilling prophecy, the prenup might itself plant the seed for exactly that outcome that the parties fear the most—a divorce!

In New York state, a prenup is not required to protect separate property. While there are some states that allow for the distribution of one spouse’s pre-marital property to the other at the time of divorce, in New York a person’s pre-marital property retains its “separate property” character and is not subject to distribution by a divorce court. So long as the owner of separate property does not change its character by, for example, re-titling it in both spouses’ names, commingling it with marital property, or depositing it into a jointly-titled bank account, it will remain protected. Thus, in New York, a prenup is generally not needed to protect one’s pre-marital property.

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