- Prenuptial Agreements Provide Clarity: A prenuptial agreement defines each party’s financial rights and responsibilities before marriage, protecting assets and avoiding future disputes.
- Enforceable Only If Properly Drafted: For a prenup to be enforceable in New York, it must be fair, fully disclosed, voluntarily signed, and properly executed according to legal standards.
- Not Just for the Wealthy: Prenuptial agreements are useful for anyone entering marriage with property, debt, businesses, or children from a prior relationship to protect.
Table of Contents
A Prenuptial Agreement is an agreement that determine before the marriage, how property will be divided on divorce. It allows parties to protect premarital and separate property from accidentally being converted to marital property. It allows parties to determine if marital property should be considered separate property.
What is A Prenuptial Agreement or Post-Nuptial Agreement?
The prenup legal document that is signed before or after a couple’s wedding. The postnuptial agreement can be signed at any time during the marriage. Both documents are essentially the same, only the name changes depending on whether it was signed before or during the marriage.
The agreement outlines the rights, responsibilities, and obligations of each partner in the event of a separation or divorce. This agreement can be tailored to meet the needs of the couple and can include any financial arrangements that they wish to include. It is important to note that prenuptial or post-nuptial agreements are not the same as a marriage contract. A marriage contract is a document that outlines the rights and obligations of each partner in the event of the death of one partner.
Why New York Couples Should Consider A Prenuptial Agreement or Post-Nuptial Agreement?
On of these agreements is a wise decision for couples in New York. This type of agreement can provide couples with the peace of mind that their assets and finances are protected in the event of a divorce or separation. Additionally, it can help couples to avoid costly and time-consuming court battles over property and assets. Furthermore, a prenuptial or post-nuptial agreement can help to ensure that any money earned during the marriage is divided in a fair and equitable manner.
There are numerous stories in the media of celebrities who didn’t get a prenuptial agreement and lived to regret it. https://www.buzzfeed.com/alexgurley/celebrities-who-didnt-sign-prenups That’s because high-value individuals or people with their own businesses have more to consider if there is a divorce.
What is Included?
The specifics of what is included in an agreement will depend on the couple’s individual needs and wishes. Generally speaking, it will outline the division of property and assets in the event of a separation or divorce. This can include both marital and separate property, as well as any retirement accounts, investments, and other financial assets. Additionally, the agreement can include provisions for alimony, child support, and other financial arrangements.
It can also include provisions regarding post-divorce spousal support (alimony). Here’s an article on how post-divorce spousal support is calculated. https://nydivorcefacts.com/post-divorce-maintenance-divorces-filed-january-25-2016/
However, with a well-drafted contract, the parties can modify the law or waive maintenance entirely.
What are the Benefits?
It can provide couples with a number of benefits. These agreements can help couples to protect their assets and finances in the event of a divorce or separation. Additionally, these agreements can provide couples with the peace of mind that their financial and property interests will be taken care of in the event of a break-up. Furthermore, having a prenuptial or post-nuptial agreement can help to avoid costly and time-consuming court battles over property and assets.
What to Consider When Drafting
When drafting this type of contract, there are a few things that couples should consider. First, couples should make sure that the agreement is fair and equitable. This means that the agreement should take into consideration the needs and interests of both partners. Furthermore, it is important for couples to make sure that the agreement is legally binding and enforceable.
Courts are more likely to enforce an agreement when both parties have been represented by lawyers. The courts will give a very close look at an agreement where the person who walked away with most of the assets had the only lawyer.
Lastly, couples should make sure that the agreement is properly executed and notarized.
What to Avoid
Here are some pitfalls to avoid: First, couples should avoid including any provisions that are overly restrictive or punitive. Additionally, couples should avoid making any promises or agreements that are not legally binding. Finally, couples should avoid making any changes to the agreement without consulting an attorney.
Any provision regarding children will generally not be enforced by the court.
What Are the Different Types Agreements?
In New York, there are a number of different types of agreements. These agreements can be tailored to meet the specific needs and wishes of the couple. Generally speaking, they can include provisions for the division of assets support as mentioned above, and other financial arrangements. It can also address how to avoid turning separation property into marital property. This is called “co-mingling.”
For example, say you got a personal injury property settlement or an inheritance. That money is separate property. However, if you put it in a joint bank account with your spouse, you have turned it into marital property. A well drafted agreement will solve this problem.
Are They Enforceable in New York?
Yes, these are are generally considered to be legally binding and enforceable. However, it is important to note that there are certain requirements that must be met in order for an agreement to be considered valid and enforceable. These requirements include that both partners must have entered into the agreement voluntarily, that both partners must have disclosed all of their assets and liabilities, and that the agreement must be properly notarized. A regular notarized signature is not good enough. The document has to be notarized with the same formality as used to transfer a deed.
To be enforceable, the agreement must be both reasonable at the time it was signed and reasonable at the time of the divorce.
Call Port and Sava for a Free 15 Minute Telephone Consultation
If you have any questions on prenuptial or postnuptial agreements, call Port and Sava at (516) 352-2999 for a free telephone consultation.
Frequently Asked Questions: Prenuptial Agreements in New York
1. What is a prenuptial agreement?
A prenuptial agreement (or “prenup”) is a legal contract entered into before marriage that outlines how assets, debts, income, and property will be handled during the marriage and in the event of divorce or death.
2. Do only wealthy people need prenuptial agreements?
No. While wealthy individuals often use prenups, they are also valuable for anyone who has property, a business, significant debts, future inheritances, or children from a prior relationship to protect.
3. Are prenuptial agreements enforceable in New York?
Yes—but only if certain conditions are met. To be enforceable, a prenup must be entered into voluntarily, with full financial disclosure, without coercion, and it must be properly executed (signed and notarized).
4. What can a prenuptial agreement cover?
Prenups can address:
- Division of property and debts
- Spousal support (alimony) terms
- Business interests
- Rights to future inheritances
- Ownership of retirement accounts However, they cannot predetermine issues of child custody or child support.
5. Can a prenuptial agreement be challenged or overturned?
Yes. A prenup can be challenged if it was signed under duress, involved fraud or misrepresentation, lacked full financial disclosure, or was unconscionably unfair at the time of signing.
6. Can we modify or revoke a prenuptial agreement after marriage?
Yes. Spouses can modify or revoke a prenup after marriage through a written, signed, and notarized agreement, often called a postnuptial agreement.
7. How soon before the wedding should a prenup be signed?
Ideally, a prenup should be signed well before the wedding—weeks or months in advance—to avoid claims of coercion or undue pressure.
8. Should each party have their own attorney when drafting a prenup?
Absolutely. To ensure fairness and avoid future challenges, both parties should have independent legal counsel to review and advise on the agreement.
9. What happens if we don’t have a prenup?
Without a prenup, New York’s equitable distribution laws will govern the division of assets and debts in the event of divorce, which may not align with either party’s expectations.
