Prenuptial Agreements in New York

• What is a prenuptial agreement?
• How a prenup works
• How a New York prenup could be invalidated
• Prenup cost
• Alternative options

The laws surrounding prenuptial agreements vary somewhat from state to state. In New York, these agreements must be entered prior to marriage, and they immediately take effect upon marriage.

What is a prenuptial agreement?

A prenuptial agreement is a legally binding agreement two marrying people make before getting married (hence pre and nuptial). It is used to establish the rights and responsibilities each party will have during the marriage and how marital assets would be divided in the event of divorce or death. 

This agreement can override the defaults of New York law on a variety of financial matters. It can be useful for avoiding lengthy legal battles in the event of a divorce, as it allows marrying parties to set what they believe is fair while they’re on friendly terms.

Are prenuptial agreements enforceable in New York?

Assuming all parties legally consent and the prenuptial agreement was properly constructed, prenuptial agreements (or prenups) are perfectly enforceable in New York. They are a fairly common tool used to avoid complicated legal battles in the event of a divorce. They can also be used to establish what should happen in the event of the death of a spouse. 

How do they work?

A prenuptial agreement allows the marrying parties to decide how their property ought to be divided in the event of death or divorce, even if that division would be different than is typical of New York law. 

When writing out a prenuptial agreement, both parties should fully disclose all of their assets to one another. If a party covers up the true extent or value of their assets, the prenup could be rendered invalid.

There are limits to prenuptial agreements. For example, although the split doesn’t have to be 50/50, one partner cannot orchestrate an agreement that would leave the other person in crushing poverty in the event of a divorce.

These agreements aren’t only useful in the event of a divorce. A prenup can establish other elements of how a marriage will function as well. For example, it can establish that pre-marriage debt stays with the individual who incurred that debt.

What can they include?

A prenup may do the following:

• Define property that would remain separate and stay with each party in the event of a divorce
• Define which property will be considered marital, or shared, property
• Establish how maintenance payments (alimony) would work in the event of a divorce
• Establish a guarantee of support for a child of a prior marriage in the event of a divorce

A prenuptial agreement represents a negotiation. While it may feel strange to push back on a prenuptial agreement with someone you love, this is a legally binding agreement. It could have lifelong consequences for you, so you should thoroughly understand it before signing it.

What can’t they include?

Several things cannot be included in a prenuptial agreement, including the following:

• Illegal provisions
• A waiver of rights to alimony payments
• Items regarding personal, rather than financial, matters, such as who will perform chores or how a child should be raised

To make the document legally binding, it’s important to do your best to keep every element of your prenup legally valid. Generally speaking, you must make sure it only deals with financial matters and is relatively reasonable. 

Read on to learn about circumstances that could potentially invalidate a prenup.

What could invalidate a New York prenup?

Several things can invalidate a prenup in New York. 

Incomplete asset disclosure: If an agreement were to be made without full asset disclosure – one party failed to fully disclose their assets – it would be considered fraudulent and invalid. 

Coercion or distress: A prenup is also invalid if it was signed under coercion or distress or if one of the signing parties lacked the capacity to consent to the agreement. For example, if that person suffered from mental illnesses or was under the influence of drugs or alcohol at the signing, the prenup would likely be considered invalid.

Improper writing: Signing a prenuptial agreement that has been written improperly can also invalidate it, even if both parties want it to be binding. This is one reason why many experts suggest involving a legal expert in the agreement process.

Illegal inclusions: Finally, a prenup is invalid if it contains items that it simply isn’t allowed to contain. Extremely lopsided or peculiar measures such as items stating no child support will ever be paid under any circumstances or that a partner must engage in sexual relations at a minimum of a certain rate, could render the agreement invalid. Again, this is true regardless of how both parties feel about the items.

Read: Suspect Your Spouse is Hiding Assets during Divorce?

How long do prenuptial agreements last?

Prenuptial agreements typically last indefinitely. The only thing that may break an agreement is if it’s found to be invalid, as discussed in the previous section.

How much does it cost?

Prenups are typically legally complex enough that they require some type of legal representation to write them out. The cost can vary depending on the complexity of the agreement and the length of negotiations with one’s partner. Many law firms start pricing between $500 and $800, though some have much higher starting rates, upwards of $2,000. You might also choose to hire a mediator to help you to negotiate the terms of the agreement.

That said, it's important not to cut corners in this process if you want a prenup to act as you intend. While pricier packages don’t necessarily mean better quality, more expensive professionals generally cost more because they’re better able to handle complex prenup negotiations. 

Are there alternative options to a prenup in New York?

Some people don’t feel the need to have a prenup. They may find other ways to control their assets in the event of a divorce. For example, one could establish a financial trust or limited liability company to hold assets outside of a marriage. 

Another option is to create a postnuptial agreement. This is similar to a prenuptial agreement, but it is made after marriage. To learn more about prenuptial and postnuptial agreements, we suggest reading our article, Why You Should Consider a Postnuptial Agreement.

References