Parents, parents, parents. Can’t live with ’em, can’t live without ’em, am I right? Sometimes, we must let our parents have their opinions and try not to take them personally. They changed our dirty diapers for years, after all! Okay, but in all seriousness, backlash from a parent on a prenup is tough. Whether you are getting backlash because they think prenups are stupid or they don’t like specifically what your prenup states, it’s never fun. At the end of the day, it’s your life, and you have to make the best decisions for yourself, but it’s always a good idea to be respectful and consider your parents’ advice. They have a ton of life experience and maybe have learned a thing or two! They may even have a prenup experience themselves or lived through a divorce without the softer landing a prenup may have provided, giving them a strong opinion one way or another. Either way, they’re giving you backlash, and it hurts! Let’s dive into ways to handle this.
New York Family Law
First, let’s take a quick dive into the laws of New York because if you’ve clicked on this article, you’re likely living in NY or plan to live there at some point in the marriage. One good way to handle the backlash from anyone on any topic is to know your stuff. Know the laws, so you can feel confident and prepared for any tense convo with the ‘rents.
Let’s start off with property division and what happens to marital property in a NY divorce. New York is what’s known as an “equitable distribution” state. This means that a NY court will divide a couple’s property in a divorce based on what is “equitable” and not necessarily 50/50. Each equitable distribution state has its own set of factors that helps the divorce judge decide who gets what property. For example, some of the factors include the income and property of each spouse, the length of the marriage, the age and health of the spouses, and more. You can see a full list of the factors here. So, the assigned judge to a divorce case will look at all of the factors and apply them to the circumstances of the specific couple. Does one party have a very large income while the other does not? Was the marriage 50 years or 2 years long? All of these things matter when apportioning property between spouses. Depending on the case, the court may award property in a 30/70 split, 40/60 split, or any other combination of splits. A quick little reminder: property division also includes apportioning debt. That’s right, you may get stuck with your partner’s debt, even if you didn’t take it out. This is exactly why you should get a prenup. A prenup may help you keep certain assets and debt separate that you did not wish to be divided.
Spousal Support, also called alimony, is the money paid from one spouse to the other in the event of a divorce. It may be your worst nightmare to have to pay alimony (or to not be awarded alimony!). In New York, the amount of alimony to be paid and for how long is done via a mathematical equation and judicial discretion using a list of factors. There are several different types of alimony, such as temporary alimony or post-divorce alimony. Temporary alimony (a.k.a. Pendente lite support) is paid during the divorce proceedings and ends when the divorce is final (or it may continue post-divorce). Post-divorce alimony is economic support paid after the divorce has been finalized.
How much alimony will be awarded? It’s not a straightforward answer. To answer this question, the court will use a calculator that takes into consideration each spouse’s income and whether the paying spouse will also pay child support. The court may also use its discretion to determine how much. In other words, there’s no concrete answer as to how much alimony will be paid, but you can generalize based on the calculator.
Inheritances and gifts
Typically, under New York law, inheritances and gifts are treated as separate property and are not subject to division during a divorce. However, inheritances and gifts can quickly become marital property and subject to equitable distribution (like we discussed above) if the inheritance or gift is not properly maintained as separate property or designated as such in a prenup. If an inheritance or gift is considered marital property, then the court will utilize the equitable distribution factors to decide how to apportion it between the couple. There are several ways an inheritance or gift can become marital and subject to distribution. This can be through joint gifts (the gift is made out to both of you) or through the commingling of assets and income. Commingling is mixing assets; for example, let’s say you take your inheritance of $100,000 and deposit it into a marital, joint bank account, and it is now mixed with marital earnings. It has now been commingled with marital funds, and a court may find the inheritance to be marital property, subject to division.
If your parent hates prenups and thinks you shouldn’t get one
Maybe your parents think prenups are a death sentence for your marriage or that they are a waste of money. Rest assured. We have some convincing material for you to show them.
It’s actually a tool for communication
First of all, you can tell mom and dad that a prenup is not just a legal tool to divide property and determine alimony. It is also a tool for communication. The act of setting up a prenuptial agreement gives future spouses a place to open up deep communication about things they may not have touched on so deeply before. Through the arranging of a prenup, couples learn new things, such as each other’s needs, goals, expectations, and boundaries. This formal process of planning the future of their marriage facilitates a deeper understanding of one another. So, you can tell them that a prenup is actually helping your marriage, not destroying it, and you are likely to come out the other end with a much better understanding of your honey!
You already have a “default prenup”
Second of all, did you know that you already have a prenup? Your “default prenup” is actually state divorce law which lays out exactly how a judge may divide up your property, and it even gives the judge room to make discretionary calls. In New York, that means a judge will have a very subjective look into your life, apply your life to a list of state law factors, and decide who gets what. On the flip side, when you have a prenup, you have an opportunity to make your own rules you, as a couple, think is fair and not leave it in the hands of the judge. What sounds better? An outcome that is custom-made for your marriage’s specific needs or the default prenup subject to New York divorce laws and a judge’s discretion?
You can include other, non-financial topics in your prenup
Parents still not convinced? What if you told them prenups can cover other topics, such as confidentiality and pets? Especially with the Millennial generation, people are including clauses that say what happens to Fido in a divorce or what information is allowed on social media. (Small note: New York likely only allows you to put pets in a prenup if they existed before the marriage. You can’t write into a prenup a future pet in New York). People are writing about pet custody, pet visitation schedules, and financial obligations for pets in their prenups. As for confidentiality, let’s say the husband shares a photo of himself and his wife at the pool, but the wife never approves of making the picture public, so issues arise. To avoid this problem, millennials are writing in confidentiality clauses regarding how images, video, and information is shared on social media.
Now, if that doesn’t convince them, then I don’t know what will!
If your parent disapproves of what you’ve put into your prenup (i.e., they want to protect the family wealth or family business)
It’s no secret that your parents want you to protect the family’s wealth. After all, they’ve (probably) worked so hard for it. They may have opinions and requests on what goes into the prenup to ensure all stays in the family. Inheritances, gifts, and family businesses are all at stake in a divorce. That’s right, if you don’t have a prenup, all of those things could be split up with your future ex if not handled exactly right. Ouch! No wonder your parents are so worried.
Let’s use an example to illustrate. Your parents give you $10,000 every Christmas without fail. This is legally considered a “gift” and is technically considered your own separate property under New York law, not subject to division. However, it could become marital property, subject to division. One way that could happen is if that $10,000 gets deposited into a joint bank account that you share with your spouse, there’s a good chance it’s going to become “marital property” and then be divided among you and your spouse in the event of a divorce. This same principle goes for asset inheritances, too.
At the end of the day, it’s your call on what you put in your prenup, but you should understand the ramifications of your decisions! If you are okay with your potential future ex-spouse sharing the family wealth, then by all means, do what you believe is right!
Lisa Zeiderman is Managing Partner at Miller Zeiderman LLP, based in New York. A matrimonial attorney, CFL and Certified Divorce Financial Analyst, she regularly handles complex financial and custody divorce matters, as well as pre- and post-nuptial agreements. Named to the Crain’s New York list of Notable Woman Attorneys for 2022, as well as a Crain’s New York Notable Diverse Lawyer for 2022, a Hudson Valley Best Lawyer in 2022, a 2021 Best Family Law Attorney for Client Satisfaction by the American Institute of Family Law Attorneys, among many other awards, Lisa is a founding member of the American Academy of Certified Financial Litigators and a member of the panel for Attorneys for Children. Lisa is also a member of the Forbes Business Council.
In addition to authoring a well-read blog on Psychology Today, “Legal Matters: Understanding Mental Health Issues as They Apply to Divorce and Child Custody,” Ms. Zeiderman is regularly published in Financial Advisor Magazine, the New York Law Journal, and by the Forbes Business Council. She is also interviewed on issues ranging from financial empowerment to tax issues to child custody in a host of media. Ms. Zeiderman, a Fordham University of Law graduate, also serves as the Vice President of the Board of Savvy Ladies, Inc., and on the board of LIFT, Legal Information for Families Today.