Prenuptial Agreements in New York

Learn the basics of prenuptial agreements in New York.

By , Attorney · Cooley Law School
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If a prenuptial agreement ("prenup" for short) isn't part of your wedding plans, maybe it should be. Many happy couples use premarital contracts. Rather than a recipe for divorce, a prenuptial agreement can spell out rights and responsibilities during marriage and lead to fewer arguments about finances.

Each state has its own rules for prenuptial agreements. Couples should understand the requirements for an agreement before signing because premarital contracts can have long-term effects. This article provides an overview of prenuptial agreements in New York. If after reading this article, you have questions, please contact a local family law attorney for advice.

What Is a Prenuptial Agreement?

A "prenuptial agreement" or "antenuptial agreement" is a contract between two future spouses that settles issues of property division and support in the event of death or divorce.

In New York, a prenuptial agreement is made before marriage and will take effect as soon as the couple marries. Prenuptial agreements must be in writing and signed by both future spouses before a notary public. The court won't accept an oral antenuptial agreement or an unsigned agreement.

Who Should Get a Prenuptial Agreement?

Prenups can be tailored to fit the individual needs of a couple. Rich celebrities aren't the only ones who need prenups. For example, a single parent planning on remarrying might want a premarital contract to protect a child's inheritance or personal savings. Moreover, a wealthy individual may wish to write an agreement to preserve his or her fortune or for tax purposes. Whatever the circumstance, a prenuptial agreement can protect an individual's assets and simplify property division in a divorce.

In some circumstances, a spouse may want to keep a family home or certain premarital business assets separate. Without a prenuptial agreement, the court decides how to divide property according to state law upon either spouse's death or divorce. A prenup allows couples to keep control of property and choose how to divide assets and debts based on the couple's unique needs.

What Does a New York Prenuptial Agreement Cover?

Prenuptial agreements typically resolve issues that would otherwise be decided by a judge at a divorce trial. Most agreements will address one or more of the following subjects:

  • each spouse's right to property (whether owned individually or as a couple)
  • the distribution of assets and debts during marriage, or in the event of death or divorce
  • each spouse's right to buy, lease, sell, transfer or otherwise control property
  • each spouse's rights in and management of a family business
  • each spouse's right to alimony, including the amount and duration of an alimony award
  • each spouse's entitlement to death benefits from the other's life insurance policy
  • the state law which governs the agreement, and
  • any other issue the couple wants to address.

Couples have wide latitude in creating prenuptial agreements. However, there are subjects that a prenup can't cover. Specifically, an agreement can't require either spouse to commit a crime or prevent either spouse from prosecuting a crime, such as domestic violence. Unlike many other states, premarital agreements in New York can address some issues involving children.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in New York?

Antenuptial agreements in New York cannot definitively resolve issues regarding the education, support, and care of children. However, parents can create an agreement that addresses future child support and custody issues, and the judge will refer to the antenuptial agreement before making the final decision on child custody and support. However, the court must verify that the parent's agreement is in the child's best interest. Judges will consider a parents' prenuptial agreement and enforce its terms as long as those terms serve a child's needs.

In one New York case, the parents had entered into a premarital agreement that required the couple's children to be baptized and raised in the Roman Catholic faith. Following a divorce, the child's mother sought to modify the agreement to allow her child to attend a Christian Science school. The court found that a modification of the agreement was in the child's best interests and struck down portions of the premarital agreement.

Will a New York Court Enforce My Prenuptial Agreement?

New York is in the minority of states that haven't adopted the Uniform Prenuptial Agreement Act (UPAA). Instead, New York state law sets forth the rules and requirements for prenuptial agreements.

Basic contract rules apply to prenuptial agreements in New York. Specifically, an agreement should be in writing and signed by the future spouses before a notary public. The prenup doesn't take effect until a couple marries. However, a prenuptial agreement made before a religious ceremony intended to be a marriage is valid even if the marriage isn't legally binding.

Generally, a prenuptial agreement is presumed to be valid unless a spouse can prove the following:

  • one spouse signed the agreement under duress
  • one spouse wasn't mentally competent or was under the age of 18
  • one spouse defrauded the other under the agreement
  • the agreement was unconscionable (severely unfair) when the parties signed it
  • the parties didn't put the agreement in writing, or
  • the couple didn't sign the prenup until after the couple married.

In New York, potential spouses are under no obligation to disclose their finances to each other before signing a prenuptial agreement. However, if a spouse chooses to disclose his or her assets and misrepresents his or her financial condition, the court may overturn the prenuptial agreement.

Many premarital agreements address alimony. In New York, spouses can eliminate spousal support under a prenup unless one spouse is left destitute. If a spouse deprived of alimony under a prenup is forced to seek public assistance, the court will overturn the alimony provisions of the prenuptial agreement.

The laws governing prenuptial agreements are complex. It's essential to understand your rights and responsibilities under a prenup before signing one. If you're considering a prenuptial agreement or have additional questions, you may want to contact a local New York family law attorney for advice.

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