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The Perils of Prenups

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The Women’s Bar Association of the State of New York presents Convention 2021 Continuing Legal Education Series The Perils of Prenups May 21, 2021 1:15 pm - 2:45 pm Presenter: Chaim Steinberger, Esq. The Perils of Prenups: The psycho-social dynamics and legal effects of prenuptial agreements. The Women’s Bar Association of the State of New York (WBASNY) 2021 Convention May 21, 2021, 1:15-2:45 pm The Perils of Prenups: The psycho-social dynamics and legal effects of prenuptial agreements. Copyright ©2021, Chaim Steinberger, P.C. TABLE OF CONTENTS Presenter’s PowerPoint Slides. ................................................................................................... 4 New York Law Journal, The Perils of Prenups..................................................................... 35 Speaker's Biography & Publications........................................................................................ 41 c.v. Chaim Steinberger. ................................................................................................. 41 New York Law Journal, Divorce w-o Destruction. ................................................ 43 Make More Money by Being More Ethical. ............................................................. 45 Speaker’s Biography. .................................................................................................... 49 Relevant Statutes. ....................................................................................................................... 50 EPTL § 4-1.1 Descent and distribution of a decedents estate. ............................. 50 EPTL § 5-1.1 Right of election by surviving spouse. ............................................. 52 EPTL § 5-1.1-A Right of election by surviving spouse. ......................................... 61 DRL § 236[B][5-a] re maintenance awards .............................................................. 68 DRL § 236. .................................................................................................................... 76 GOL § 5-311 Certain Agreements between husand and wife void ..................... 88 Caselaw . .......................................................................................................................... 89 Anonymous v Anonymous................................................................................................. 89 Avitzur v Avitzur. ........................................................................................................... 96 Aziz v Aziz. ................................................................................................................. 102 Christian v Christian...................................................................................................... 103 Cioffi-Petrakis v Petrakis................................................................................................ 108 Freiman v Freiman......................................................................................................... 110 Galetta v Galetta............................................................................................................ 113 Gottlieb v Gottlieb. ......................................................................................................... 119 K v B . ........................................................................................................................ 147 Lennox v Weberman . .................................................................................................... 161 Mahoney-Buntzman v Buntzman . ................................................................................. 163 Matisoff v Dobi. ............................................................................................................. 168 Matter of Greiff. ............................................................................................................. 174 Mengal v Mengal. ........................................................................................................... 177 Petracca v Petracca. ......................................................................................................... 180 Ramon v Ramon............................................................................................................. 182 Rosenbaum v Rosenbaum................................................................................................ 191 5/9/2021 Chaim Steinberger Mediator | Arbitrator | Litigator CHAIM STEINBERGER, P.C. 150 East 58th Street, Suite 2701 New York, NY 10155 (212) 964-6100 www.manhattan-law.com [email protected] “Shepherding good people through difficult family transitions with ferocious, relentless integrity!” 2 3 1 5/9/2021 4 5 I. THE UTILITY 6 2 5/9/2021 Does everyone who gets married need a prenup? 7 Analogy: Does everyone (who’s going to die) need a will? 8 IN NEW YORK, THE DISTRIBUTION OF AN INTESTATE-DECEDENT’S ESTATE IS GOVERNED BY ARTICLE 4 OF THE ESTATES, POWERS & TRUSTS LAW (“EPTL”). 9 3 5/9/2021 EPTL § 4-1.1 INTESTACY DISTRIBUTION 10 If a decedent is survived by a spouse and no children, the entire estate goes to the spouse. Children and no spouse, it all goes to the children. Spouse and children, $50k + ½ of remainder to spouse, the rest divided among the children. No spouse, no children, then to the decedent’s parents. No spouse, no children, no parents, then to the decedent’s siblings. 11 YOU NEED A WILL ONLY IF (AMONG OTHER REASONS): For estate planning reasons (to save on estate taxes); to leave different amounts to different children/distributees (i.e., specific allocations of property to specific beneficiaries); To leave specific assets to specific distributees (i.e., like-new ‘67 ‘vette to a nephew, mom's wedding ring to Suzy, etc.); To allocate estate tax liability in a certain way, other than proportional to the amounts inherited; To designate a specific person to administer the estate and/or not to require a bond; 12 4 5/9/2021 WILL IS NECESSARY (CONT.): There are young child(ren) and: a. they need to be provided for; b. ensure that children can’t squander the inheritance; or c. wants someone specific to be their guardian / not be required to post a bond / wants to leave specific direction about how the children should be provided for (clothed, fed, educated, etc.) / wants to change the default standards about how the children's funds can or should be invested; d. has other specific wishes that would not otherwise be honored in a "plain vanilla" no-will situation; 13 What typically happens if there is no prenuptial agreement? 14 15 Marital vs. Separate Property 5 5/9/2021 16 Commingling of separate property 17 Origination Credit (for real estate only!) So what’s the point of asking for a prenup . what part of the “separate/marital property” equation do you want to change . and how do you ask for it without sounding like a jerk? 18 6 5/9/2021 There may be no advantage to having a prenup . and there may be significant costs! 19 II. THE DANGERS 20 “Predictability!” Is that a good thing? 21 7 5/9/2021 22 23 24 8 5/9/2021 25 26 CHANGED CIRCUMSTANCES: A party’s business/career tanks and he/she can no longer afford to maintain an appropriate lifestyle or pay the obligations agreed to in the prenup; One party earns all the money and the other spends inappropriately, or is drunk or a gambler. K. vs. B., 13 AD3d 12, 784 NYS2d 76 (1st Dept., 2004) (wife cared for children and ran law firm while husband lived in another county and kept taking money from wife to invest in his money-losing ventures, 65%-35% award affirmed) “while the husband may have contemplated an unconventional marriage in which the parties make unequal financial and emotional contributions, but, upon dissolution, the parties are nonetheless awarded an equal distribution of marital assets, the law does not contemplate such an arrangement; especially in a two-decade-long marriage like this, where time, a variety of difficult circumstances, and the arrival of three children have together created a life the parties likely never anticipated when they wrote a so-called “agreement.” That writing-created27 in a pre-equitable distribution context-carries no legal force save for the minor impact of its historical voice. 9 5/9/2021 28 To summarize, executing a prenup is like buying a future—you can’t be sure if it will be good or bad in twenty years: 1. Society’s mores may change, but you’ll be stuck with the terms of the prenup; 2. A spouse may make unanticipated sacrifices and be left vulnerable by the prenup; 3. The “Pretty Woman” result; 4. The tides of fortune may turn, and what seemed like a good deal is now a bad bargain. 29 Just asking for it . 30 10 5/9/2021 31 32 33 11 5/9/2021 1. Mention of the “D” word is eternally toxic; 2. Places everyone on high alert; 3. At a time that they should be melding into one family unit, they’re thrust into the role of adversaries; 4. Demonstrates a lack of confidence or commitment in themselves or their partner; 5. Requires articulation of worst fears that people prefer to remain in oblivious denial; 34 Will it reveal too much about each of you? 35 36 12 5/9/2021 Is this a “good” way to get to know your betrothed? 37 38 39 13 5/9/2021 III. SOMETIMES THOUGH . 40 When might a prenup be necessary? 41 42 14 5/9/2021 While the lack of “significant contributions” by one spouse may possibly warrant some adjustment, we should not assume that such a “contribution” requires either earning money or raising children. There are many kinds of couples and many types of marital
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