A Prenuptial Agreement or Premarital Agreement is a contract between two prospective parties that are planning to be married. The agreement becomes effective upon marriage. Prenuptial Agreements are a way for both parties to determine how their property and assets can be managed ahead of time, if the marriage ends in divorce or death of a spouse. Before entering into a Prenuptial Agreement, it is important that both parties consult with a separate licensed attorney(prenup lawyer nyc) to review the Agreement in order to ensure the Agreement is fair and enforceable.
What is the UPAA/UPMAA?
In 1983, the Uniform Premarital Act was drafted with hopes to promote uniformity and continuity of the enforcement of Prenuptial Agreements (Premarital Agreements, Antenuptial Agreements) across the States. In 2012, it was revised and called the Uniform Premarital and Marital Agreements Act. Currently, twenty-eight (28) States have adopted one of these standards.
The State of New York is NOT one of the twenty-eight States that have adopted the UPAA/UPMAA standards, however they do allow Premarital Agreements. If you choose to reside out of state after marriage the agreement is not necessarily enforceable. If a couple with a Premarital Agreement moves to New York and takes up residency, their agreement may not be enforceable in New York.
Who might benefit from a Premarital Agreement in New York?
Premarital Agreements are not just for wealthy individuals entering into marriage. Couples who might consider getting a Premarital Agreement have diverse backgrounds and situations. Having a Premarital Agreement can ensure that assets and property are divided the way the couple intends, rather than leaving the decision to the courts. New York is an “equitable distribution” state, and the courts decide what is “equal” between parties in the event of divorce rather than just splitting assets between parties.. The courts, however,tend to honor a Premarital Agreement if one has been written. Couples who have previously been married, have children from a previous relationship, and/or have separate property or businesses may benefit from a Premarital Agreement.
“Choice of Law”
A consideration to keep in mind is residency. Because New York is not part of the UPAA/UPMAA, it is important to consider where you plan on residing in the future. A Premarital Agreement signed in New York is not necessarily enforceable outside of the State if you move after marriage. If you think you may plan to move outside of New York after marriage it is important that you consult with an attorney in the potential state or states you may reside in and draft a Premarital Agreement that has provisions that also conform to that State’s requirements.
What Can A Premarital Agreement Contain?
A Premarital Agreement can specify what happens to property and assets in the event of death of a spouse, or divorce. In New York, an agreement can specify, for example:
- Maintaining separate property
- Responsibility of separate debt
- Maintaining separate income
- Retaining inheritance and gifts
- Determining the division of future earnings, assets, investments, property
- Waiving certain rights (i.e. inheritance, will, alimony)
*Provisions for Spousal Support can be written into the agreement but need to be planned for in the future due to change in financial circumstances. The court has discretion and ultimately the final say if the agreement is deemed “unconscionable,” meaning unfair.
*Child Support and Custody if the child has been born prior to the marriage however the court has discretion to change or modify the arrangement
- New York Statutes Regarding Children’s Rights
New York is one of a few States that allows for provisions for children to be written into a Premarital Agreement. According to DRL § 236, Part B(3)(4) “Such an agreement may include… provision for the custody, care, education and maintenance of any child of the parties.” However, both parties need to be advised of stipulations, changes in income, current laws, and understand that the court has the ultimate say if the agreement is found to be not in the best interest of the child.
See DOM 240
All of this planned beforehand can save time and money rather than leaving it to the courts to decide.
What Makes A Premarital Agreement Enforceable in New York?
In New York, Premarital Agreements are governed by the Domestic Relations Law Section 23 (B) (3) (DRL§23 (B) (3) and by Case Law unlike states that follow the UPAA/UPMAA Guidelines.. In order for an Agreement to be enforceable must be enacted before marriage. The agreement also must be in writing and signed by both parties and “acknowledged as a deed is filed” in the State of New York.
It is recommended that the Premarital Agreement be reviewed by both parties with separate attorneys to prevent conflict of interest. Although it is not required in New York, it is highly recommended that both parties disclose all financial information including all assets, property, and debt. This all should be done within leaving a “reasonable” amount of time before the wedding so there is no later recourse for one member of the party to claim that he or she signed under duress, or was coerced into signing the agreement.
What Makes a Premarital Agreement Unenforceable?
A Premarital Agreement is unenforceable in New York if it includes provisions that violate New York Law. Agreements are also unenforceable if they include incentives for divorce, are deceptive in nature, or have unfair clauses. Unfair clauses are those, for example, that put demands on one party to get cosmetic surgery, or loose weight.
Questionable Enforceability
There are additional items that may be included in a Premarital Agreement but may not end up being enforceable. Issues regarding custody and child support can be written into the agreement, but the courts ultimately have the final say. Other issues that may or may not be enforceable are clauses dealing with infidelity, or initiating divorce.
New York Terms and Statutes as defined Under Domestic Relations §36
- Marital Property is defined as property and assets acquired jointly beginning when the couple is married. Because New York is an “equitable distribution”state, in the event of divorce, marital property is divided “fairly” between the two parties and the court takes multiple factors into consideration.
- Separate Property is defined as property individually owned and maintained by each party prior to the marriage
- Alimony (briefly stated…click on the link for the full statute) In New York, alimony can be temporary or permanent and the amount and duration is determined by many factors. Some factors that determine the length of time one receives alimony, and the amount are:
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- Length of marriage-3 years versus 33 years makes a big difference
- Potential for employment (if the wife had been a stay at home Mom for fifteen years and has no college education it is going to be harder to support herself versus a full-time Doctor with no kids)
- Reason for divorce-no-fault versus infidelity or spousal abuse
- Financial situation of both parties
In the end, the court has the final decision.
- Asset/Debt Statute in New York divides the marital assets and the debt “fairly” under “equitable distribution.
- Divorce statute in New York, is officially called an “Action for Divorce”. To get a divorce in New York, the couple’s marriage must be considered “unrecoverable” after six (6) months and be residing in New York or, be separated for one (1) year and one party must have been residing in New York during that year. New York offers two types of divorce, “no-fault” and “at-fault”. For an “at-fault” divorce, one party must prove the other party committed one of the acts that are grounds for an “at-fault” divorce.
Case Summaries
Werther v Werther-the court has final say over child support
Months prior to their wedding, Mr. Werther presented the soon to be Mrs. Werther with a Prenuptial Agreement. She had approximately four months to look at it and was encouraged to take it to an attorney but did not. The agreement had provisions for the division of property, assets, the waiver of alimony, and a child support plan. The morning of the wedding the soon to be Mrs. Werther had not yet signed, and the couple went and had the agreement signed shortly before the wedding. When the couple later divorced, Mrs. Werther attempted to get the agreement invalidated because she claimed she signed under duress, and that Mr. Werther committed fraud with the exception of the child support provision.
Goldfarb v Goldfarb–”a deed in writing is enforceable”
by not disclosing his assets. The court disagreed because she had the agreement months before the wedding and found the agreement valid The Goldfarbs’s signed a Premarital Agreement before New York’s current statutes were put into place. When they filed for divorce, Mrs. Goldfarb argued the agreement was invalid in terms of spousal support. The court disagreed stating the agreement was in writing and enforceable.
Werther v Werther -get advice from an attorney
Prior to getting married, Mr. Werther and the future Mrs. Werther discussed signing a Prenuptial Agreement. Both parties had been previously married. Up until the time of the wedding however, no such agreement was signed until the actual day of the wedding. It is unclear when the agreement was drafted or how long either party had the document. The Premarital Agreement included provisions for the couples to retain their separate property, the division of marital property, and Mrs. Werther waived her right to any alimony and child support. When the couple later divorced, Mrs. Werther argued that the agreement was invalid because she signed under duress, was not able to consult with an attorney, and the agreement was unfair. Because she was unable to prove how long she had the agreement, she could not prove if she had time to consult with an attorney and basically could not prove that she signed under duress. The court however intervened in terms of child support.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].
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