New York Divorce: Prenup vs. No Prenup

Nov 17, 2022 | Divorce, New York Prenuptial Agreements

A prenup is an excellent way to help eliminate many of the uncertainties that exist during a divorce.

When it comes to New York divorces, there are two main ways to approach the process: with a prenuptial agreement or without one.

A prenuptial agreement is a contract between spouses that outlines what will happen to their property and finances if they divorce. It can be helpful in preventing disputes down the road, and it can make the divorce process simpler and faster.

However, not everyone wants or needs a prenuptial agreement. If you don’t have one and you get divorced, the court will decide how to split up your property and assets based on New York’s divorce laws. This can be a long and complicated process, and there is no guarantee that you will get the outcome you want.

So which is better: a prenuptial agreement or no prenuptial agreement? The answer depends on your individual situation. If you’re hesitant to sign a prenuptial agreement, you can always wait until after you’re married to sign a post-nuptial agreement. This is a similar contract that becomes effective once you’re married and outlines what will happen in the event of a divorce.

The Process

Step 1

Filing for divorce

Prenup or no prenup, every divorce begins when one spouse files paperwork to begin the case and officially lets the other spouse know by serving them the papers. The other spouse then has a chance to file a response.
Step 2

Sharing financial information

The next step is to share information with the other spouse. The point of this step is to put everything on the table, including assets, debt, income, and expenses. Regardless of a prenup or not, you will need to disclose your finances, but having a prenup may require less attorney work at this step and less disclosure of finances. Less attorney work means fewer legal fees.
Step 3

Making decisions

After both spouses share information, decisions must be made by either the court or the couple. This is when having a prenup comes in handy; you’ve already agreed on what will happen in the divorce. Without a prenup, you will need to decide what to do (property division, debt division, alimony, etc.). If you can’t decide, the judges will decide for you. Remember, with a prenup, the attorneys and judges have less work to do at this step, thus cutting down on legal fees and making the whole process a lot faster.
Step 4

Finalization

The last step is the finalization of the divorce. This step is the same whether or not you have a prenup, but having a prenup may expedite the entire process. . After you and your spouse have ironed out the details of spousal support, property division, and child matters, you will submit the final documents to the court, and your divorce will become final.

New York Divorce Process with a Prenup versus without a Prenup

If you ever get a divorce, a prenuptial agreement would likely make the divorce process cheaper and faster. Without a prenup, you leave the decision of “who gets what” up to the judges overseeing your case, or of course, you can negotiate a resolution with your spouse, which could become contentious.

Alimony

Many couples that are self-supporting before marriage want to maintain that self-support after marriage. Many opt to eliminate alimony in their prenups; others modify the amount or frequency of alimony. For instance, a couple might decide that one spouse will only get alimony during the divorce proceedings or that support will be limited to a specific dollar amount.

It’s important to remember a couple of things when adding alimony provisions to your prenuptial agreement. First, the alimony provision should be fair and reasonable when the prenup is signed. Second, the alimony terms should not be unconscionable at the time of the divorce. This means that you and your future spouse should think about what your relationship will look like in the future to ensure that the agreement doesn’t become unconscionable. For example, will you both continue to work, or will one of you stay home with the future children? Does either of you have a thriving business that you expect to continue growing in the future? These are situations you want to consider when drafting your prenup.

Of course, there are always exceptions. When a couple agrees to alter alimony in their prenup, the New York family court will generally oblige to the couple’s request. If your alimony provision was unfair and unreasonable at the time of signing or unconscionable at the time of divorce, the court might decide to throw out the alimony provision.

Let’s imagine a world where you never got a prenup. This world would be full of lengthy court processes, interspousal arguments, and judges making life decisions for you. That’s exactly what you can expect if you do not have a prenup in place and you can’t agree on what to do about alimony! Without a prenup, a New York judge will use a statutory calculator and some discretion to determine how much and when alimony should be paid.

Types of Alimony under New York Law

In New York and sans prenup, calculating the amount and length of time for alimony payments are done via mathematical equation and court discretion based upon a variety of factors.

You may be eligible to pay or receive temporary alimony and/or post-divorce alimony. Temporary alimony is paid to a spouse during the divorce proceedings, and either ends when the divorce is final or continues post-divorce. It is known as pendente lite support. Post-divorce alimony is payment made to one spouse from the other after the divorce is final.

For the amount of temporary alimony, the calculator considers each spouse’s income and whether the spouse paying alimony will also pay child support; the court will also utilize its discretion as to the amount.

For post-divorce alimony, New York judges will use a formula to determine the amount and length of time of support that must be paid. This equation considers the following:

  • Each spouse’s income,

  • Whether the spouse paying alimony will also pay child support,

  • The length of time the spouses were married.

A New York judge may increase or decrease the calculation’s suggested alimony amount using the following factors:

  • The age and health of the spouses,

  • The present or future earning capacity of the spouses,

  • The need of one spouse to incur education or training expenses,

  • Whether a child support award affects the amount of alimony,

  • The wasteful use of marital property or unfair transfers of marital property,

  • The existence and duration of a pre-marital joint household or a pre-divorce separate household,

  • The acts by one spouse against another that have inhibited or continue to inhibit a spouse’s earning capacity or ability to obtain meaningful employment, such as domestic violence,

  • The availability and cost of medical insurance,

  • The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a spouse’s earning capacity,

  • The tax consequences to each spouse,

  • The standard of living established during the marriage,

  • The reduced or lost earning capacity of the payee as a result of giving up or delaying education or career opportunities during the marriage,

  • The equitable distribution of marital property and the income the spouse might receive from the property,

  • The contributions and services of the spouse receiving support to the household or career of the spouse paying support, and

  • Any other factor the court declares just and proper to consider.

N.Y. Dom. Rel. Law § 236(6)(e)(1)

Property and Debts

When you have a prenup, your destiny is determined for you! In your prenup, you may specify who gets what property, whether it was acquired before, during, or after marriage. This may include real estate, inheritances, gifts, income, earnings, interest, businesses, investments, furniture, jewelry, and more. That $10,000 couch you so desperately wanted and saved up for? You can write that into your prenup as your property (as long as your future spouse agrees, of course)!
Divorce is one of the most difficult hardships anyone can go through, in part because it involves dividing up your property and debt. A judge will tell you how to split up your house, car, bank accounts, student loan debt, investments, inheritances, and even your beanie babies (if that’s something you’re fighting over)! Without a prenup or an agreement with your spouse, a judge will step in and apply standard New York law to determine who gets what.

New York is an equitable division state, meaning the judges will split up property in a “fair” way according to a set of factors written in a New York statute (N.Y. Dom. Rel. § 236). What is “fair” is not necessarily 50/50. Equitable does not necessarily mean equal. This means that the judges overseeing your case may give one spouse more than the other based on the circumstances. For instance, if one spouse is in poor health and the other is not, the judge may choose to give the spouse with healthcare needs more to make it a fair outcome.

Child Custody and Child Support

While most states prohibit contracting to child-support or custody provisions in a prenuptial agreement, New York actually allows them to an extent. If the child in question has already been born, then you and your future spouse may create child custody arrangements and child support calculations in your prenup. You may not create child custody and child support arrangements for a child who is not yet born. Remember that judges still have total authority and discretion in deciding child custody and support. Their main goal is to promote the child’s best interest over all else.

For instance, let’s say you contract in your prenup that one spouse is completely off the hook for child support. Depending on the circumstances, the court may throw out this provision and require child support to be paid.

Generally, if your child custody terms are reasonable, the court will likely abide by your wishes. However, if there has been a substantial change in circumstances, such as one of you can no longer work, one of your incomes has doubled, or the child has special needs, the court may strike your child custody and support provisions. Again, even if you believe your terms to be extremely reasonable, at the end of the day, it’s still up to the judges to make that final determination.

Most states typically do not allow child custody and child support arrangements to be written into a prenup. However, New York does allow it to an extent. It is an excellent way to avoid arguments and lengthy court processes in the event of a divorce. Not to mention, you will save tons of money in legal fees to avoid the process of involving judges and lawyers in your child’s matters, provided that there is no substantial change in circumstances.

Determining Child Custody

Without a prenup, child custody will be determined by a judge or agreement by you and your co-parent. Child custody is always determined by trying to put the child’s best interests at the forefront. The court will make a custody decision based on the “best interest of the child” test by looking at the circumstances as a whole. Judges typically rely on certain factors to help weigh out the child’s best interests, including but not limited to the following:

  • The parents’ stability

  • How long the child has been residing with either parent

  • The child’s preferences

  • The child’s relationship with siblings and other family members

  • History of parental performance

  • Willingness to foster a good relationship with the other parent

  • Whether the child has any special needs

  • And many more (all related to the well-being of the child)

Determining Child Support

Without a prenup in place, child support is calculated by using a formula that is laid out in the statute and at the Court’s discretion. Typically, the calculation considers both parents’ annual income and the number of children. The income from both parents is multiplied by a percentage. The percentages attached to the number of children (“child support percentage”) are:

  • 17% of combined income for one child

  • 25% of combined income for two children

  • 29% of combined income for three children

  • 31% of combined income for four children, and

  • No less than 35% of combined income for five or more children.

For example, let’s say you have one child, and both parents make $50,000 annually before deductions for a combined income of $100,000. This means the estimated annual child support amount should be around $17,000.

N.Y. Dom. Rel. § 240

Lisa Zeiderman

Lisa Zeiderman is Managing Partner at Miller Zeiderman LLP, based in New York. A matrimonial attorney, CFL and Certified Divorce Financial Analyst, she regularly handles complex financial and custody divorce matters, as well as pre- and post-nuptial agreements. Named to the Crain’s New York list of Notable Woman Attorneys for 2022, as well as a Crain’s New York Notable Diverse Lawyer for 2022, a Hudson Valley Best Lawyer in 2022, a 2021 Best Family Law Attorney for Client Satisfaction by the American Institute of Family Law Attorneys, among many other awards, Lisa is a founding member of the American Academy of Certified Financial Litigators and a member of the panel for Attorneys for Children. Lisa is also a member of the Forbes Business Council.

In addition to authoring a well-read blog on Psychology Today, “Legal Matters: Understanding Mental Health Issues as They Apply to Divorce and Child Custody,” Ms. Zeiderman is regularly published in Financial Advisor Magazine, the New York Law Journal, and by the Forbes Business Council. She is also interviewed on issues ranging from financial empowerment to tax issues to child custody in a host of media. Ms. Zeiderman, a Fordham University of Law graduate, also serves as the Vice President of the Board of Savvy Ladies, Inc., and on the board of LIFT, Legal Information for Families Today.

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