Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- New York divides property by equitable distribution, not community property.
- Separate bank accounts do not keep income separate.
- The acknowledgment must be done correctly, or the whole agreement can fail.
- An alimony waiver is tested again at the time of divorce.
- A prenup cannot decide custody or waive child support.
If you and your spouse are considering drafting a prenuptial agreement, you will likely require the assistance of an experienced Long Island prenuptial agreement lawyer. To learn the benefits of drafting a prenuptial agreement, what makes a prenuptial agreement valid and enforceable in New York, and how our attorneys can assist you, continue reading and reach out to our dedicated firm.
What Are the Benefits of Drafting a Prenuptial Agreement?
Drafting a prenuptial agreement has many benefits. Your prenuptial agreement can protect various premarital assets from the pitfalls of divorce. This may include assets such as your home, inheritance, and many more. You can also create certain clauses within your prenuptial agreement, such as alimony clauses, fidelity clauses, and marital real estate clauses. Each of these clauses can predetermine alimony terms and various other property distribution issues in the event of a divorce.
In the event you and your spouse do not establish a prenuptial agreement and choose to file for divorce, Domestic Relations Law § 236(B) dictates what happens to your assets. New York is an equitable distribution state, meaning the assets you accumulate during your marriage will be divided based on each spouse’s contributions, rather than an automatic even split. The court will consider a number of factors when determining how to divide these assets. However, establishing a prenuptial agreement allows you and your spouse to decide how these assets should be handled in advance, rather than leaving it up to a judge.
You should also understand that maintaining separate bank accounts throughout your marriage does not matter much when it comes to dividing assets. Income earned during the marriage is generally considered marital property, regardless of who earns the funds or where they are deposited.
Prenups Are Not Only for the Wealthy
There is a common misconception that only those with considerable wealth can benefit from prenuptial agreements. However, this is far from the truth. In reality, many couples use this for a number of reasons, whether it be to protect a family business, anticipated inheritance, or even children from a prior marriage.
The cost comparison is worth making honestly as well. A prenuptial agreement is a fixed, modest expense at a moment when both people are cooperating. A contested divorce over the same assets, litigated by people who are no longer cooperating, costs a great deal more.
Do It Early, Not the Week Before the Wedding
It is also important to understand that the timing of these matters will impact the enforceability of your agreement. If a prenuptial agreement is presented days before the wedding after deposits have been paid and the opportunity to walk away is no longer realistic, the other party may have grounds to claim duress years down the line. The courts ultimately look at the circumstances of the signing, including pressure.
Beginning the conversation months out protects the agreement, and it gives both people the time to be represented, understand what they are signing, and negotiate terms they can live with.
What Makes a Prenuptial Agreement Valid and Enforceable in New York State?
When a legal document is not considered valid and legally enforceable, it is virtually useless. This is why it is essential that you retain the services of an experienced attorney who can ensure that your prenuptial agreement meets various criteria. Your prenuptial agreement must meet the following qualifications for it to be considered valid and enforceable in Long Island:
- It must be drafted before marriage
- It must be in writing
- It must be executed voluntarily
- It must include full disclosure at the time of execution
- It must be fair and just to both parties
- It must be executed by both parties in front of a notary
The Notarization Requirement Is Stricter Than It Sounds
The notary requirement is where most prenuptial agreements fail, as “in front of a notary” is not as lenient as it sounds. Section 236(B) requires the agreement to be acknowledged in the same manner in which a deed is recorded, meaning a properly worded certificate of acknowledgment for each party’s signature.
In fact, the Court of Appeals deemed an entire prenuptial agreement invalid in Galetta v. Galetta due to a defective acknowledgement certificate, and courts have regularly ruled against prenuptial agreements with signatures that were not acknowledged at the time they were made. This is a technical requirement that a correctly drafted prenuptial agreement will satisfy with ease, while DIY or homemade agreements often do not.
Alimony Waivers Are Tested Twice
A prenup can address spousal maintenance, but that provision faces a standard the rest of the agreement does not. Under § 236(B)(3), maintenance terms are enforceable only if they were fair and reasonable at the time the agreement was made and are not unconscionable at the time of entry of final judgment.
The second look will occur years later and depends on the facts of the matter. A waiver that seemed reasonable to two young adults in similar careers may look different after decades of marriage and one spouse leaving the workforce. Courts sometimes uphold all property provisions in a prenuptial agreement while deeming the maintenance waiver unenforceable, so understanding that possibility can help you determine what to include in your document.
What a Prenup Cannot Do
Despite the fact that a prenuptial agreement can offer considerable protection and benefits for both parties, understanding the matters that cannot be enforced through these agreements is critical.
- Child custody and parenting time: Child custody and parenting time are ultimately determined in accordance with the best interests of the child at the time of the divorce. The court does not have to adhere to an agreement made by the parent before the child even existed.
- Waivers of child support: Parents are legally obligated to financially provide for their children, and child support is ultimately the right of the child. As such, parents cannot waive these rights.
- Unconscionable terms, meaning provisions so one-sided that no fully informed person would reasonably have accepted them.
- Anything illegal or contrary to public policy.
Once you are married, you are no longer able to draft a prenuptial agreement. However, you can still draft a document that will serve a similar purpose known as a postnuptial agreement. Postnuptial agreements are drafted exclusively after marriage but will assist spouses in protecting their assets in the event of a divorce.
If you are seeking to draft a prenuptial agreement in New York, it is important that you retain the services of an experienced Long Island family law attorney who will assist you in this process to ensure that your agreement is valid and enforceable. To learn more about our firm and how our services can assist you, give us a call today to schedule your initial consultation with our legal team.
Contact Our Experienced New York Firm
Barrows Levy PLLC is a dedicated New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you require a lawyer who has notable experience handling family and estate planning matters, contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
