About to walk the aisle with your partner? Before the big day, perhaps you should consider a prenuptial agreement. Also known as a “prenup”, this agreement outlines the rights and obligations of each partner during and after the marriage. The result? Easier division of assets in the event of divorce or death of a spouse. A New York divorce lawyer can help you write a prenuptial agreement.

The rules governing prenups in different states vary. These contracts are binding and can significantly affect your wellbeing in the long-term. Therefore, it is important for you and your partner to understand the requirements and provisions of a prenup before entering into one. 

Read on to know how prenuptial agreements in New York work.

What is a Prenuptial Agreement?

A prenuptial agreement is simply a contract between two partners planning to marry, which outlines how property should be divided when they divorce or one of them passes on after their union.

Also known as an “antenuptial agreement”, the contract has to be written down and signed by both partners that will be marrying. The couple has to append their signatures to the prenup agreement in the presence of a notary public. 

In New York, a prenup agreement is legal only if it is made before marriage. The contract comes into effect when the partners marry. Any oral or unsigned agreements are not considered valid before a court of law.

A prenup agreement works to protect both spouses in the event of a divorce or death. The agreement outlines how individual assets should be shared and any financial support that will be accorded to one or both partners. 

Do You Need an Antenuptial Agreement?

Many people think that only rich couples need to worry about prenup agreements. However, nothing can be further from the truth. The agreement can be customized to address the specific needs of a couple. 

For example, if you are a single parent and are planning to remarry, you may want your future spouse to sign a prenup agreement that will protect your personal savings or child’s inheritance. On the same note, if you have amassed a lot of wealth, you may wish to sign a prenuptial agreement for tax purposes or to ensure you’ll still have the rights to your fortune in case of a divorce.

Regardless of your financial standing, signing a prenup agreement is a great way of protecting your assets and simplifying the division of property in the event of a divorce or death.

Sometimes, you may want specific premarital assets to remain separate, for example, a family home. If you and your future spouse don’t sign a prenup agreement, the division of the property may be done by the court in the event of a divorce or death. A prenup agreement shields the assets you want from getting divided by the court.

What is Covered in a Prenuptial Agreement?

Generally, prenup agreements try to resolve the issues that may arise in case of a divorce or death, which may require the court to be called upon to decide. Among the common issues addressed by prenups include:

  • The death benefits that each spouse is entitled to from the other’s life insurance policy
  • The rights of every spouse when it comes to alimony, including the amount and duration over which it should be awarded
  • The rights of each spouse to transfer, sell, lease, buy, or control assets
  • How debts and assets will be distributed in the event of divorce or death
  • The rights of each spouse to property (whether the property is individually or jointly owned)
  • The state laws that govern the prenup agreements
  • Any other issues that the couple may want to capture in the agreement

Prenup agreements can capture a number of things that couples may want. However, the agreements cannot cover all subjects. For example, an agreement cannot prevent a spouse from reporting a crime, for example, domestic violence. Also, unlike is the case in most states, New York laws address some issues related to the children’s welfare as captured in prenups.

Can Prenups Resolve Child Support and Custody Issues?

New York prenuptial agreements cannot definitely resolve issues related to the care, support, and education of children. With this said, the parents are still at liberty to include child issues and child support matters in a prenup agreement.

When these issues are captured, the judge will usually refer to the agreement before ruling on a child custody or support case. One caveat regarding the provisions in the agreement is that they must be in the best interest of the child. The court will usually enforce prenup agreement terms related to child support if they are in the best interest of the child.

Can the Courts Enforce a Prenup Agreement?

The Uniform Prenuptial Agreement Act (UPAA), which allows courts in some states to enforce prenups, does not apply in New York as the state has not adopted it. Therefore, the courts cannot directly enforce a prenup agreement. However, the state has some requirements that must be followed for prenup agreements to be legal. 

First off, the basic rules of writing a legally binding contract apply with New York prenuptial agreements. In particular, the prenup has to be written down and both future spouses must sign it in the presence of a notary public. The agreement will not come into effect before the couple legally married each other. 

On a side note, a prenuptial agreement is still considered valid if it is made before the holding of a religious marriage, which may not be legally binding. Generally, the agreement will be considered valid unless any of the following apply:

  • The prenup was signed after the couple was already married
  • The prenup was not put down in writing
  • The agreement was severely unfair to one or both couples when it was signed
  • In the agreement, one spouse defrauded the other
  • During the signing of the agreement, one spouse was under the age of 18 or was mentally incompetent
  • One spouse signed the agreement under duress

According to New York state laws, spouses are not required to explicitly declare all the assets and financial interests they have before signing a prenup agreement. However, if the spouse had disclosed his or their financial position and assets but then goes ahead to misrepresent them in the agreement, the court can declare the prenup null and void.

Most premarital agreements capture matters of alimony. In New York, a spouse can use a prenuptial agreement to protect themselves from providing alimony to the other spouse, unless that spouse is left destitute. In such a case, the court can invalidate the alimony provision in the prenup agreement to require alimony payments for the destitute spouse.

Prenuptial agreements in New York can be quite complex. Therefore, it is important to know your rights and obligations before appending your signature to an agreement. To ensure your interests are captured and well represented in a prenup agreement, you should seek advice from a family lawyer.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.