How to get a prenuptial agreement in New York

If you think signing a prenuptial agreement in New York is only for the rich and famous, think again. That mode of thinking is changing quickly. In fact, 15% of Americans who were married or engaged signed a prenup in 2022 compared to just 3% in 2010, according to one poll. While the number of actual prenuptial agreements may still seem small, the number of adults in support of prenuptial agreements is growing. Four in 10 U.S. adults are in favor of prenups, while 35% of those who are unmarried claim that they will likely sign a prenuptial agreement in the future.

New York marriage and divorce law has the potential to cause complications for couples who choose divorce. That's why it's important for every couple or future spouse to strongly consider protecting themselves and their assets with a legal prenuptial agreement. Here is what every couple in New York should know about the world of prenuptial agreements.

What is a prenuptial agreement?

A prenuptial agreement is a legally binding contract that is signed by a couple or future spouses before marriage that details how their assets, debts, and spousal support will be handled in the case of divorce. The purpose of this legal document is to protect each party's individual financial interests by outlining the terms of property division and alimony. A prenuptial agreement can also be referred to as a:

• prenup
• premarital agreement
• premarital contract
• antenuptial agreement
• prenuptial contract

Any agreement that is signed during the marriage can be referred to as a postnuptial, postmarital, or marital agreement.

While many people believe that prenuptial agreements are exclusively for the rich, they are designed to protect all couples, regardless of their financial standing. Here are some important reasons to consider getting a prenuptial agreement.

Common reasons for a prenup in New York

The establishment of a prenuptial agreement does not depend on a couple's financial status, age, or educational status. Here is why all couples in New York who are considering marriage should take the time to file a prenuptial agreement.

To establish separation of finances

A solid prenuptial agreement will clearly define whether assets like a house or car are considered individual property or part of the marital estate. Here are some factors to consider:

• If one individual is wealthier than the other, a prenup can be a solid step toward protecting the wealthier individual from being taken advantage of.
• A prenuptial agreement can be used to limit the amount of money paid to the other (i.e., spousal support) in the event of a divorce.
• If an individual owns a business, a prenup can prevent the other partner from claiming a portion of the business' increase in value or income.

Each state has its own laws that dictate how property that was obtained during a marriage will be distributed during divorce. It is important to note that New York is NOT a community property state. States with community property laws will typically divide property between both parties equally. Other factors within states with communal property laws that further determine how to equitably divide property in the event of a divorce are each individual's financial contribution to the marriage and their needs after the divorce.

Since New York does not follow community property law, the division and distribution of property is left up to the courts in the event of a divorce without a premarital agreement.

To determine how previously owned property will be distributed to children from a previous marriage after death

A couple that has children from former marriages may choose to draw up a prenup to establish how property will be distributed after their death. This agreement will ensure that the property will not be taken by the surviving spouse, leaving little to nothing for children.

To determine the financial obligations of both parties

It is important for couples to declare the financial rights and responsibilities of both parties during the marriage, whether or not they have children, regardless of their financial well-being. This may look like a statement detailing how the couple chooses to manage joint bank accounts, credit cards, daily household bills, and savings. It can also be helpful in situations where one spouse puts the other through college or some other kind of career training. How will the couple handle the payment of household bills in situations like these?

To avoid public arguments in the event of a divorce

It's difficult to imagine divorce before the marriage takes place. However, it's important to understand that it is a possibility. Preparing a prenuptial agreement can help the couple avoid public disputes regarding how they will divide their property and alimony settlements.

To protect each other from debts

A couple may decide to use a prenuptial agreement to protect the other from personal debts that can include school loans and medical debt.

Should you, as a couple, decide not to create a prenuptial agreement, the state of New York will determine items like ownership of property during the marriage, as well as what happens to property owned by one party and property owned by the couple once one spouse dies.

Furthermore, a legal marriage includes certain automatic property rights for each spouse, no matter what state the couple resides in. Generally speaking, it is assumed that a spouse has the right to the following during a marriage in any state:

• Share ownership of property acquired during the marriage. Should the couple decide to divorce, then the property is divided evenly between the individuals
• Share responsibility for any and all debts incurred during the marriage
• Share the management of marital property, which can include the right to sell or give away property

Signing a prenuptial agreement is important for all couples in New York state because if you decide that the marital laws do not suit you, you can use the prenup to make your own arrangements.

How to hire a family law attorney to get a prenup in New York

A family law attorney works on legal issues pertaining to family relationships, including child custody or divorce. They represent their clients in a court of New York law, advocate for them during negotiations, draft documents like prenuptial agreements, property agreements, and provide general legal counsel.

While couples can write their own prenup agreements, the benefit of working with a family law attorney is that you will be working with a professional who understands New York state law. A prenuptial agreement must be in writing in order to be enforceable in the state of New York. The document must be voluntarily signed and validated by both parties. There must be full disclosure of assets owned by both parties in order for the document to be valid.

There are no filing fees required for drafting prenuptial agreements. However, the cost of hiring a New York state family law attorney to draft a prenup on your behalf can vary depending on the experience and complexity of the prenup. Prices can range anywhere from $900 to $5,000 or more per agreement.

Postnuptial agreement in New York state

A family law attorney can be hired to draft postnuptial agreements after marriage. A postnuptial agreement is a contract agreed upon by both parties that details the ownership of financial assets in the case of a divorce. The postnuptial can cover how to protect an inheritance, guidelines around providing for a stay-at-home spouse, define ownership of a business, and other important matters.

Prenup basics in NY: What does a prenuptial agreement cover?

A New York prenup agreement can include statements in reference to separate property, spousal maintenance, marital property, and property rights.

Property division

Prenuptial agreements in New York can detail what property should remain the property of each party in the case of a divorce.

Spousal support and maintenance

Spousal maintenance determines the support of one spouse by the other spouse in the event of a divorce. A couple can use the prenuptial agreement to clarify if they will choose to follow the spousal maintenance laws of the state of New York, modify support according to their own liking, or waive support altogether.

Issues concerning child support in New York state

Prenuptial agreements in the state of New York do not address child custody or child support issues in the same way that they address spousal support. The courts will calculate child support at the time of separation or divorce based on one or both parent's ability to pay and the child's needs at the time.

Marital property

A New York prenuptial agreement can detail what property is considered property of the married couple in the state of New York. Marital property can include assets that were obtained prior to the marriage as well as assets obtained after the marriage.

Property rights

A prenup agreement in New York state can include ownership rights to property acquired before, during, or after marriage. This can include assets, debt, inheritance, gifts, real estate, income, earnings, or future interests related to investments or businesses. A prenup that has been properly drafted can specify what will happen to the assets and income during marriage and what will happen after a separation or divorce.

Debt division

Debt within the confines of a marriage can include any of the following:

• private student loans
• public student loans
• car loans
• credit card
• mortgages

The prenuptial agreement will detail if the debt was accumulated before or during the marriage. All debt that was acquired before the marriage is considered to be premarital debt. All debt acquired during the marriage is labeled as marital debt.

NY prenup requirements: What are five things that cannot be included in a prenuptial agreement?

While it is important to know what a prenuptial agreement in New York covers, it is also important to know what items are not included. A prenuptial agreement in New York or any other state does NOT cover the following items:

1. Child custody or matters related to visitation rights
2. Child support
3. Alimony costs in the event of a divorce
4. All matters related to daily household issues
5. Any activities prohibited by law

It is important to review any issues related to these items to get clarity on how to handle such issues with a lawyer while drafting a prenuptial agreement.

What can invalidate a prenup?

A New York state court can make a valid prenuptial agreement under the following circumstances:

• The agreement is made in writing
• The parties get married
• The agreement is signed and acknowledged by a deed of record
• The person seeking to enforce the prenuptial agreement is seeking a divorce

However, there are several circumstances in which a New York state court can invalidate a prenup agreement.

The agreement is fraudulent

A New York prenuptial agreement is considered fraudulent when a partner has lied about their ownership of assets OR failed to disclose all income during the signing of the agreement.

A partner was pressured, coerced, or forced to sign the prenup

If one partner was influenced to sign the prenup beyond their own free will, then the prenup is not valid. This circumstance can be difficult to prove.

There is an error in the prenup

The state of New York requires that all prenuptial agreements have a signature block at the end of the document. If it is found that the document has not been notarized by a notary public or the acknowledgments section is missing, the court can rule the prenup invalid.

The conditions of the prenup are unreasonable

If either spouse can prove that the terms of the prenup are unreasonable, the prenup may be found invalid. An example of this may be that one partner has been coerced to give up all parental rights or any assets accumulated during the marriage.

FAQs

There are a number of factors concerning laws governing prenuptial agreements that a couple must consider. Here are some final items that a couple may think about before making final decisions.

Do I need a lawyer for a prenup in New York?

In the state of New York, a couple can decide to forego legal representation while creating a prenuptial agreement. In fact, the law states that both spouses must choose to either retain their own independent lawyers OR waive their right to one in writing. However, marriage and divorce law can be complicated. It is advisable for both parties to secure their own lawyer to ensure that each party's interests have been addressed in the prenuptial agreement.

Can you write your own prenup in New York?

Although it is possible for couples to draft their own prenuptial agreements, dealing with a family law attorney has the advantage of putting you in the hands of a knowledgeable individual who is familiar with New York state law. In the state of New York, a prenuptial agreement cannot be enforced unless it is in writing. Both parties must willingly sign and ratify the legal document. For the paperwork to be deemed legal, all assets possessed by both parties must be fully disclosed.

How does a prenuptial agreement handle child support issues in New York?

In the state of New York, child support issues are a separate matter that are not addressed in a prenuptial agreement. At the time of separation or divorce, the courts will determine child support based on the needs of the child and the ability of one or both parents to pay.

What does divorce look like with a prenuptial agreement in New York?

With or without a prenup, divorce always starts with one spouse filing paperwork to start the divorce process. The other spouse is given a chance to file a response. The next step is to share financial information. The person filing for divorce must disclose all assets, debt, income, and expenses. The other spouse then has a chance to share their financial information. The prenup can assist this process as much of this information has already been disclosed. If the couple does not have a prenup, decisions surrounding property division, debt division, alimony, and so on become a lot more complicated. If the couple cannot come to an agreement on their own concerning these matters, the courts are left to make a decision on their behalf. Once the divorce proceedings are complete, the final documents are submitted to the court, and the divorce will become final.