Getting married is a big decision that should not be taken lightly. It’s important to understand that this is not just a union of two people but an economic partnership as well. Marrying couples in New York may want to consider working with a family law attorney to draft a prenuptial agreement in order for each partner to protect themselves in the event of a divorce. But just what are the requirements for prenuptial agreements in New York?

What is a Prenuptial Agreement?

A prenuptial agreement or premarital agreement (also known colloquially as a “prenup”) is a legal document that specifically sets forth the division of separate property and marital property in the event of a separation, divorce, or the death of one partner in the marriage. While it’s common to hear about wealthy individuals and celebrities signing prenups, ordinary people who are not public figures often use premarital contracts as well.

What Does a Prenuptial Agreement Cover?

The contents of any prenuptial agreement can vary a great deal and will be tailored to the individual assets and financial situation of each couple. In general, premarital agreements will cover the following areas, should a divorce occur:

• Division of property: defines the distribution of marital assets accumulated during the marriage, such as real estate or other assets, or separate property either partner possessed prior to the marriage.
• Spousal support: covers spousal maintenance/alimony payments by one partner to another, often when one spouse is the primary earner, or significantly wealthier than the other.

A prenuptial agreement is also useful in defining a spouse’s responsibilities to the other’s estate, whether that means waiving their right of election (taking a share of the deceased partner’s estate willed to the surviving partner) or being allowed to keep it under state law

What a Prenuptial Agreement Cannot Cover

• Child Custody: The law is very specific that you cannot sign a prenuptial contracting away the rights of your future children. For example, if you pass away, your custodial rights revert to the grandparents, and if you divorce, one of the parties automatically has custody of the child/children.
• Child Support: The law is also very specific that you cannot sign a prenup contracting away child support for future child/children.

What are the Most Common Reasons for a Prenuptial Agreement?

The most common reasons for prenuptial agreements are largely financial, but they may also have to do with one or both partners’ responsibilities from prior marriage(s).

If one of the parties has more significant assets and income than the other, a prenup can ensure that your current and future financial assets will be protected. If both parties have approximately the same assets and income, a prenuptial agreement can determine future marital assets and maintenance payments.

In the event that one spouse has accumulated a significant amount of debt, you may want to ensure that the other is not left exposed to the other person’s debts, both during and potentially after the marriage. The last thing you want after going through a divorce is to find out that you are saddled with 50% of your partner’s financial obligations, perhaps for life. A properly written and executed prenuptial agreement can help you avoid that unpleasant situation.

Also, if one partner has been married before, that person may have obligations from the previous marriage, both financially and/or in terms of caring for any prior children. By signing a prenuptial agreement that defines both partners’ responsibilities for these obligations, you can protect yourself from having to shoulder them or protect your partner from the same burdens.

Requirements of a Valid New York Prenuptial Agreement

Under New York law, prenuptial agreements are entered into prior to the marriage and take effect as soon as the couple becomes officially married. The document itself must be written, both partners must sign it, and it must be witnessed by a notary public in order to be valid. In the case of an unsigned or oral prenuptial agreement, the court will not accept it.

Also, both parties must enter into the agreement willingly and with full knowledge of what they are agreeing to. If one spouse signed the agreement under duress, was not deemed competent, was under 18 (a minor), or if the agreement was unconscionable at the time (meaning unfair by legal standards), it will not be considered valid. This is extremely difficult to prove after signing the agreement.

Does a Prenuptial Agreement Protect Separate Assets and Marital Assets?

Yes, a prenuptial agreement does protect marital assets acquired during the marriage and separate assets acquired prior to the marriage or used during the marriage. A comprehensive and legally defined prenuptial agreement is imperative to obtain these results.

Is it too Late to Create a Prenuptial Agreement?

A valid prenuptial agreement must be signed by both partners prior to being married, and their signatures must be witnessed by a notary public. However, if you are already married and still wish to have the same legal protection offered by a prenuptial agreement, it is still possible to draft and sign a postnuptial agreement. The documents are substantially similar, but different rules apply to a postnuptial agreement than a prenup, especially if a divorce or separation is already imminent and separate attorneys for each spouse are already involved.

Get in touch with an experienced family law lawyer at Tully Rinckey, who can provide you with the legal advice you need to navigate the process of drafting, signing, and enforcing a prenuptial agreement. Contact us to schedule a consultation today!

For years, Michael has been relentlessly fighting for the rights of Capital Region spouses, parents, and grandparents in virtually every aspect of family and matrimonial law. As a Partner at Tully Rinckey PLLC, Michael provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre-and post-nuptial agreements, orders of protection and family offenses. He can be reached at info@tullylegal.com or at (888-529-4543).