Drafting 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 a New York prenuptial agreement.

A New York prenuptial agreement is:

  1. a contract between future spouses;
  2. that discloses assets and income of the parties; and
  3. details key choices of the parties during marriage, after death, after disability and after divorce or separation.

In New York, a prenuptial agreement is valid and enforceable so long as it protects both spouses (not patently unfair) and it was entered into with full and fair disclosure of all assets. New York also requires that a New York prenuptial agreement be executed much in the same way a deed is signed and recorded, with the parties being required to have, in most cases, separate New York attorneys.

A NY prenuptial agreement can:

    • Define property inside and outside New York
      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 (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 (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.
    • Detail 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 brings minor children to a marriage, a prenuptial agreement can help make sure the children are provided for if the spouses divorce.  
    • Not Detail Definitively Child Custody / Visitation: A prenuptial agreement cannot definitively address child support issues or custody issues for unborn children because a New York Family Court is bound by law to determine whether child support and custody arrangements are in the best interests of a child. However, understandings of the parties as addressed in prenuptial agreements can be used as evidence of the understandings of the parties in court.  

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 and an experienced New York lawyer is required in drafting and execution of most prenuptial agreements.

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