However, in recent years, prenuptial agreements are becoming more and more common. And, for good reason, as a prenuptial agreement is signed long before any marital tensions may arise. It is signed at a time when future spouses want to be fair and reasonable with each other. So, often, prenuptial agreements result in an end to a marriage that is simple, clean, and with dramatically less animosity and fighting. Now, who doesn’t like that idea?
Prenuptial Agreements: What is Included?
A New York prenuptial agreement can address any of the following topics: spousal maintenance, property/debt division, and counsel fees upon divorce. You do not have to address all of these topics – you have tremendous flexibility to pick and choose what topics to address, and how in depth you want to get.
For example, you can choose to address only spousal maintenance and specifically state that issues of property/debt division and counsel fees will be addressed based upon the laws existing at the time of divorce.
Prenuptial Agreements: What is Excluded?
Public policy in New York prohibits the following topics from being addressed in a prenuptial agreement: child custody and child support. Therefore, these topics are always left to be decided based upon the laws and circumstances in existence at the time of divorce.
Common Terms & Styles of Agreement
Prenuptial agreements are one of the most flexible contracts available to spouses. Over the years, though, there has been a rise in certain terms or styles of prenuptial agreements. These are highlighted below. Please remember, a prenuptial agreement is a binding contract so, before signing one, you should at least have the document reviewed by an attorney.
- Changing definition of marital property: in New York, marital property is any property (and debt) acquired from date of marriage until date of a signed settlement agreement, date of an action for divorce, or another agreed upon date. Therefore, marital property (in general) is based upon when you acquired it – without regard to how an asset it titled (ie: joint names or individual names). A popular option in prenuptial agreements is changing this rule so that marital property (some or all) is only created if spouses place the asset in joint names or do something else to purposefully grant the other spouse right to the asset.
- Sunset provision: some couples want all or some terms of their agreement, to end upon the occurrence of certain events or a certain date. In this instance, a sunset provision can be used. This term states that the clause (or whole agreement) ends or *sunsets” when indicated.
Negotiating a Prenuptial Agreement
There are a variety of ways a couple can negotiate their agreement. Many will discuss terms between themselves and then visit individual attorneys have the document drafted. Another option is to attend mediation to discuss the terms and then have the mediator draft the agreement. Regardless of how you negotiate the agreement, the key is remembering that this is a legally binding contract; so it is incredibly important to have attorney input during the process.
If you have more questions about prenuptial agreements in New York, and how it might affect you, call the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure a bright new future you and your loved ones.
Frequently Asked Questions
What is a postnuptial agreement?
Couples who are already married can also create contracts between themselves. These are called, “postnuptial agreements,” and can be used to accomplish many of the same ends as a prenuptial agreement. Postnuptial contracts must be made in good faith, disclose all assets and property prior to signing, and will not be enforceable unless properly executed.
What are the limitations on a prenuptial agreement?
As a matter of law, prenuptial agreements cannot:
- Dictate requirements for conception or family size (such as when the couple will conceive, or how many children they’ll have);
- Address any terms for custody of children upon divorce or separation;
- Limit future child support obligations or custody orders;
- Induce one spouse or the other to engage in criminal behavior; or,
- Prohibit alimony (if the absence of alimony would leave the supported spouse on public assistance, post-divorce).
Any other terms in a prenuptial agreement must be fair, reasonable, and not unconscionable; arrived at after proper disclosure and good faith negotiation. If there are terms that do not meet this standard, then they can be challenged upon divorce and a Judge has the final say as to whether those challenged clauses meet the minimum legal standard. If they do not, the agreement can be invalidated (either in whole or in part).
What are the requirements for a prenup?
In order for a prenuptial agreement to be valid, it must:
- Be voluntarily signed by both parties;
- Fully disclose all property, money, and other assets;
- Be properly executed; and
- Represent a fair and reasonable agreement.
The contract must also be executed prior to marriage. A contract signed after the wedding—even if on the same day—would be considered a postnuptial agreement. A postnuptial agreement is still a valid and binding agreement so long as it is properly executed and complies with the other elements listed above. Failure to comply with these elements could partially or completely invalidate an agreement.
What is a prenuptial agreement?
What is a postnuptial agreement?
Couples who are already married can also create contracts between themselves. These are called, “postnuptial agreements,” and can be used to accomplish many of the same ends as a prenuptial agreement. Postnuptial contracts must be made in good faith, disclose all assets and property prior to signing, and will not be enforceable unless properly executed.
What are the limitations on a prenuptial agreement?
As a matter of law, prenuptial agreements cannot:
- Dictate requirements for conception or family size (such as when the couple will conceive, or how many children they’ll have);
- Address any terms for custody of children upon divorce or separation;
- Limit future child support obligations or custody orders;
- Induce one spouse or the other to engage in criminal behavior; or,
- Prohibit alimony (if the absence of alimony would leave the supported spouse on public assistance, post-divorce).
Any other terms in a prenuptial agreement must be fair, reasonable, and not unconscionable; arrived at after proper disclosure and good faith negotiation. If there are terms that do not meet this standard, then they can be challenged upon divorce and a Judge has the final say as to whether those challenged clauses meet the minimum legal standard. If they do not, the agreement can be invalidated (either in whole or in part).
What are the requirements for a prenup?
In order for a prenuptial agreement to be valid, it must:
- Be voluntarily signed by both parties;
- Fully disclose all property, money, and other assets;
- Be properly executed; and
- Represent a fair and reasonable agreement.
The contract must also be executed prior to marriage. A contract signed after the wedding—even if on the same day—would be considered a postnuptial agreement. A postnuptial agreement is still a valid and binding agreement so long as it is properly executed and complies with the other elements listed above. Failure to comply with these elements could partially or completely invalidate an agreement.
