The New York Law Blog: What Can and Cannot Be Included In A New York Prenuptial Agreement
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Thursday, September 22, 2016

What Can and Cannot Be Included In A New York Prenuptial Agreement

NY Family Law, NY Divorce Law
In light of the impending divorce of superstar couple Brad Pitt and Angelina Jolie, now is a good time to become re-acquainted with what a prenuptial agreement is and what can and cannot be included in such agreements in the State of New York.

A prenuptial agreement is a contract between future spouses that they agree to prior to getting married where they each disclose to each other all the money, property and assets each own and determine their respective rights. The agreement sets in writing a future spouse's rights and responsibilities that s/he will have during the marriage, as well as how all money, property and assets will be divided in the event of divorce or the death of a spouse. While New York law already covers how money, property and assets would divided in the event a marriage ends in divorce or death, courts recognize valid prenuptial agreements that create division of property that differs from the statutory scheme and order that they control.

In New York, a prenuptial agreement is valid and enforceable so long as it protects both spouses and it was entered into with full and fair disclosure of all assets. New York also requires that a prenuptial agreement be executed much in the same way a deed is signed and recorded, with the parties being required to have separate attorneys to avoid any appearance of fraud.

A prenuptial agreement can address:
  • Defining property: Property and assets brought into a marriage is called separate property. So long as separate property specifically referenced in the agreement remains separate in ownership from property you and your spouse obtained together (or, marital property), then that separate property continues to belong to that spouse alone during and after the marriage. However, if a spouse does not keep his/her separate property in their own name only (for example, adding a spouse to a home you owned prior to marriage) then such separate property may become marital property and divided equally in a divorce under New York law. Future spouses can also establish who is responsible for pre-martial debt.

  • Maintenance and Child Support: A prenuptial agreement can establish maintenance, or a regular payment of money as support. This may become necessary if, for example, a spouse gives up a career to remain at home to raise children. Maintenance can also be established in the event of a divorce. If the spouses bring minor children to a marriage, a prenuptial agreement can help make sure the children are provided for if the spouses divorce.  
However, there is one aspect of family life that a prenuptial agreement does not generally cover:
  • Child Custody / Visitation: A prenuptial agreement cannot definitively address child support issues or custody issues for unborn children because a New York court is bound by law to determine whether child support and custody arrangements are in the best interests of a child.
A spouse may challenge the validity of a prenuptial agreement for certain reasons, including fraud (intentional failure to disclose assets), coercion (agreement signed under threat or duress) and unfairness (agreement was tailored inequitably in favor of one spouse to the detriment of another).

Prenuptial agreements are not simple instruments. They are, in fact, complicated and complex not only because of the legalities of the agreement, but the high emotions that can result from drafting, executing and, unfortunately, disputing the agreements in the event of divorce. That is why we recommend that you discuss these issues completely with your soon-to-be spouse before even considering hiring an attorney experienced in handling these delicate issues.
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*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.

Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.