This time of year sparks thoughts of commitment, starting a new life and a new family.  With marriage proposals being at its peak during the holiday season, there are major concerns that both parties should consider before taking the plunge.  And although some of these topics may be uncomfortable to discuss and even more uneasy to take action, they should definitely be given some significant attention to when making wedding plans.  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 a breach of contract.  However, New York abolished causes of action for breach of such contract, 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 chattel (the engagement ring) given 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, the marriage and if the marriage does not occur, the gift should be returned.  Although some states take into account which party broke off the engagement, New York does not.

2. The Prenuptial Agreement-

In New York a binding legal contract that defines the rights of the parties if the marriage ends, 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) but 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.  

3. The Cohabitation Agreement-

This agreement address the llegal 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 but are upheld under similar theory.  Cohabitation agreements usually addresses what happens to joint and separate property, responsibility for living expenses, decision making in healthcare related issues, etc. Therefore, there may be other statutory provisions that apply to issues in the cohabitation agreement, particularly wills, advanced directives and property division.

4. Separate Property-

Establishing what is separate property and what is marital property can be addressed in several ways.  A prenuptial agreement, a cohabitation agreement, trusts, wills or named beneficiaries can specify beforehand which property will be excluded from distribution when the marriage ends.  Gifts, inheritances, transfers and property acquired before the marriage should all be classified as separate property even before the marriage commences.  Otherwise, property acquired during the marriage, is presumed to be marital, including wages. (Domestic Relations Law Section 236)

5. Stepchildren & Child Support-

Taking on the role as stepparent may thrust one in the position of financial provider even after the marriage ends.  (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.  However, other requirements include that the custodial/biological parent is still alive and unmarried and the child(ren) would become dependent on public assistance without the support of the stepparent.  However, that support obligation may end if the biological parent dies or remarries.

6. Stepchildren & Child Visitation/Child Custody-

Stepparents do not have an absolute right to visit with the 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).  Although, stepparents may petition the court for child custody of a stepchild(ren), where the court finds that there are “extraordinary circumstances” like abuse/neglect or domestic violence.  So 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.

7. Care for Existing Family-

Where there are children from a previous marriage/relationship or 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 if the marriage ends.

I am all for marriage.  However, as an experienced divorce attorney I believe that addressing these concerns can minimize the emotional, psychological and financial turmoil associated with dissolution of marriage, or before it even begins.  If either of you have property, businesses, professional licenses or degrees, children from previous relationships, other family members to care for and/or debts, hiring an experienced attorney to discuss these issues should be on the wedding plan list of things to do.

Please contact our office to discuss any of these issues.