New York Prenuptial Agreements

As much as we like to romanticize the union of two individuals as spouses, we must remember that it's essentially a legal contract. Once you're married, much of your property becomes commingled (or shared, in accordance with state law) and you are endowed with other rights and responsibilities. It is possible to approach marriage in a pragmatic way, however, through the use of prenuptial agreements. These legally binding contracts, recognized and enforced in New York courts, stipulate certain terms of the marriage, such as limits on alimony or the designation of certain property as "separate" and thus not subject to division in divorce.

New York is one of 24 states that has not adopted the Uniform Premarital Agreement Act , which provides more specific guidance. However, New York courts generally will enforce a premarital agreement that is:

  • Fair;
  • Entered into through free will;
  • Entered into with full financial disclosure;
  • Entered into using independent counsel; and
  • Properly acknowledged (witnessed by a third party).

New York Prenuptial Agreements: The Basics

Although state laws affect everyone in the state, it sometimes requires a law degree to actually read and understand the statutes. While New York law is quite clear on the legality of prenuptial agreements, it doesn't provide much guidance. However, additional information about what such an agreement may address and potential challenges to its validity are listed in the helpful charte below.

Statutes

New York Consolidated Laws GOB ยง 3-303

Full Text of the Statute

A contract made between persons in contemplation of marriage, remains in full force after the marriage takes place.

What a Prenuptial Agreement May Address

  • Designating Separate Property - Specified assets don't become commingled (i.e. shared) after marriage.
  • Designating Marital Property - Specified assets considered separate are shared (i.e. marital property) after marriage.
  • Spousal Maintenance - Establishing that one partner is responsible for the financial maintenance of the other during the marriage, or parameters for support in the case of divorce.
  • Support of Children From Prior Marriage - Support of non-adopted children from a prior marriage in the case of divorce.

Note: Child support and custody arrangements may not be addressed in a prenuptial agreement (except for non-adopted children from previous partnerships), since these are reviewed or decided by the court in the best interests of the child(ren).

Challenges to the Validity of a Prenuptial Agreement

  • Coercion or Duress - Will not be enforced if one of the parties was pressured into signing the agreement.
  • Fraud - Will not be enforced if assets were not properly disclosed or were hidden from the other spouse.
  • Separate Attorneys - If both spouses used the same attorney, the court will not enforce the agreement if it appears to be unfair upon close scrutiny.
  • Unfair or Inequitable - An agreement that is particularly unfair, perhaps creating a financial hardship for one of the spouses, will not be enforced.

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

Research the Law

New York Prenuptial Agreements: Related Resources

Don't Enter Into a Prenup Without the Help of an Attorney

Prenuptial agreements are inherently awkward, since they're essentially contingency agreements just in case the marriage fails. But for some couples, prenups make really smart legal sense. Since marriage is a lifelong agreement, and making the wrong decision can have lifelong repercussions, be sure to contact an experienced New York family law attorney for expert advice.

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