Get a New York prenuptial agreement and ensure peace of mind in your marriage
New York Prenuptial Agreement Basics
A prenuptial agreement (also referred to as a prenup or premarital agreement) is a legally binding document between two parties entering into a marriage. The document is drafted prior to marriage and dictates the rights and ownership of separate property while married and in the event of divorce or separation.
Before entering into a New York Prenuptial Agreement it is important that you understand your legal rights under New York law, and what rights you are waiving by contracting around NY divorce law by way of a prenup. Below, we have included several helpful resources, including links to New York statutes, summaries of Prenuptial Agreement caselaw in New York and links to the cases. Should you need further clarification on your legal rights at any time, it is important that you contact a licensed attorney in New York to advise you.
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Why consider a New York prenup
New York has specific divorce and family laws. However, the courts in the state will tend to rely on the agreements made by spouses in a prenup. So why should you consider a NY prenup?
- You want to prevent the court from managing your finances. If you and your fiancé agree to how property and money will be distributed in the event of a divorce, the court will defer to your agreement. If there is no agreement to defer to, then the court will equitably divide the assets.
- This is not your first marriage. If you want to protect your assets and pass down money or property to children or grandchildren from previous marriages, a prenuptial agreement helps protect those assets from passing to your spouse in the event of a divorce.
- You want to protect yourself from (potentially) paying more money in the event of a split. ‘Equitable distribution’ in New York state does not mean that property or money is split equally between the parties. You may not receive what you would consider to be fair after the court equitably divides your assets. A prenup can allow you decide.
How to create a valid New York Prenup
- Written contract
- The terms must be lawful
- Your prenup must be signed by both parties, notarized, and acknowledged in the same form as is required to file a deed in New York. Remember, notarization is not enough—it must be acknowledged in a particular way or it is not valid.
- Signed voluntarily (without being under duress, intimidation, deceit, etc.)
- Full disclosure of finances. That includes, but is not limited to, any and all bank accounts, houses, cars, crypto currency and NFTs, and all other forms and sources of income.
- While there’s no concrete requirement to do this, you and your prospective spouse should sign the agreement in a reasonable amount of time before your wedding. This is to allow for enough time to make sure each party is entering the agreement voluntarily and with complete understanding and transparency. This also allows each of you enough time to obtain legal advice if you want it.
- No incentives to commit illegal acts
- No incentives for divorce
- No unfair, unjust, or deceptive terms
- Must not include clauses that are not financial in nature, like demanding that one spouse loses weight or changes their appearance
- Proceed with Caution… Child custody or child support can be included in a NY prenup, but you must proceed with caution. See the section titled “Child Support” below.
A Few Things You Can Include in a New York Prenup
A New York prenup can specify what property should remain the separate property of each party.
Spousal Maintenance / Property
This is support of one spouse, by the other spouse in the event of divorce. Your New York prenuptial agreement can specify whether you and your future spouse will choose to follow the spousal maintenance laws of New York, or whether you will choose to modify support or waive it altogether.
A New York prenup can specify what property should be considered marital property. Marital property can include assets that were otherwise premarital, as well as assets acquired after marriage.
A prenup can cover rights to property acquired before, during, or after marriage. The agreement may include assets, debt, inheritance, gifts, real estate, income, earnings, or future interests in investments or businesses. A prenup can specify what will happen to these assets and income while you’re married, and what will happen in the event of separation or divorce.
Financial Disclosure in New York
When it comes to a New York prenuptial agreement, both fiances must disclose all of their income, assets and debt. This is done via financial disclosure on a financial schedule, which is a snapshot of all of your income, assets, debt and future inheritance and attached to the end of your prenup. Complete disclosure of al finances is imperative in New York prenuptial agreements.
Choice of Law
You are free to choose whichever state you would like for your HelloPrenup prenup, but it is common practice and commonly accepted that you should choose the state in which you plan to reside as a married couple. Your choice of state (this is what we call “choice of law”) determines which state will determine enforcement of your prenup in the event of a divorce.
New York Child Support
In most states, including child support or custody provisions in your prenup is a big no-no. However, New York actually allows them to an extent. You and your partner can create an entire detailed breakdown of custody arrangements and calculations of child support in your prenup, so long as the child is already born. You cannot contract to terms for a child who is not yet born.
At the end of the day, the court has total authority and discretion in deciding custody and support arrangements. That is because the best interest of the child reigns supreme over all decisions relating to children—and the court is the one to make that determination.
New York Alimony
If you and your partner are financially independent, perhaps you both want to take spousal support off the table. If so, you’re in luck! Your prenup allows you to contractually limit or eliminate spousal support all together. There are, of course, a few caveats.
A spousal support provision needs to be “fair and reasonable at the time of the making of the agreement” and not “unconscionable at the time of entry of final judgment”. That means at the time you enter into your prenup, you and your partner need to think about what your relationship will look like down the road to ensure the agreement doesn’t become unconscionable. For example, you may both be working at your dream jobs right now but maybe one of you will end up electing to stay home with the kiddos and thereby foregoing that earlier financial independence. These are scenarios you definitely want to consider now! Make sure you consult a family law attorney to discuss these important terms in your agreement.
Statutes & Terms
Official term for jointly owned property
In New York, all marital property is divided equitably (but not always equally). Each divorce is a case by case basis that can only be determined with the help of a practiced attorney or lawyer in the state of New York.
In general, only marital property is divvied up in a divorce. The way that the property and possessions will be divided between the splitting parties will be determined based on financial and lifestyle circumstances.
“d. The term separate property shall mean: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.” NY Dom. Rel. 236
Legal term for independently owned property
Generally speaking, separate property is defined as any property that is acquired by one party prior to the marriage. It is not considered marital property, as it is not jointly owned by both parties of the marriage. This is true unless there is a prenuptial agreement in place that defines the rights and ownership to any properties within the marriage.
Spousal Maintenance Upon Divorce
Here is the fine print from the New York statute itself (NY DOM Law 236)
“Alimony, temporary and permanent. 1. Alimony. In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court’s discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons. Such direction shall be effective as of the date of the application therefor, and any retroactive amount of alimony due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary alimony which has been paid. Such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. Such direction may be made notwithstanding that the parties continue to reside in the same abode and notwithstanding that the court refuses to grant the relief requested by either spouse (1) by reason of a finding by the court that a divorce, annulment or judgment declaring the marriage a nullity had previously been granted to either spouse in an action in which jurisdiction over the person of the other spouse was not obtained, or (2) by reason of the misconduct of the other spouse, unless such NY DOM Law 236 Special controlling provisions; prior actions or proceedings; new actions or proceedings. (Laws of New York (2021 Edition)) misconduct would itself constitute grounds for separation or divorce, or (3) by reason of a failure of proof of the grounds of either spouse’s action or counterclaim. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to either spouse under this section with any amount payable to either spouse under section two hundred forty of this chapter. Upon the application of either spouse, upon such notice to the other party and given in such manner as the court shall direct, the court may annul or modify any such direction, whether made by order or by final judgment, or in case no such direction shall have been made in the final judgment may, with respect to any judgment of annulment or declaring the nullity of a void marriage rendered on or after September first, nineteen hundred forty or any judgment of separation or divorce whenever rendered, amend the judgment by inserting such direction. Subject to the provisions of section two hundred forty-four of this chapter, no such modification or annulment shall reduce or annul arrears accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. Such modification may increase such support nunc pro tunc based on newly discovered evidence.”
>> For even more fine print (that’s right, there is more!) read the New York Spousal Maintenance Laws
Asset / Debt statute
New York is an Equitable Distribution State, meaning that the court will divide the assets and debts of the two parties in a fair and “equitable” manner, based on many factors dictated by the state.
Pangea Capital Mgmt., LLC v. Lakian, 906 F.3d 1 (2nd Cir. 2018)
…on a view of marriage as an “economic partnership.” McDermott v. McDermott, 119 A.D.2d 370, 507 N.Y.S.2d 390,396 (2d Dep’t 1986). Under that system, all property acquired by either or both spouses during the marriage, “regardless of the form in which title is held,” is deemed “marital property.” N.Y. Dom. Rel. Law § 236(B)(1)(c). Upon dissolution of the marriage, marital property is equitably distributed by a court, see id. § 236(B)(5)(a)(providing that, in a divorce action, “[e]xcept where the parties have provided in an agreement for the disposition of their property …
“Action for divorce:” Official term used in referring to divorce
Action for divorce is New York’s legal term for a divorce. An action for divorce occurs when two people, who have been legally married, begin the court process to have the marriage ended.
New York Divorce Grounds
New York honors “fault” and “no fault” grounds for divorce as long as the parties have been separated for at least one year or if the marriage is unrecoverable for at least six months. Once either of these time lapses are accounted for, the parties can enter an action for divorce.
New York Prenuptial Agreement Case Summaries
Here’s some New York state prenuptial agreement cases, with links to the case text. This is not an exhaustive list of every prenuptial agreement case decided in New York, but may serve as a reference.
Werther v. Werther, 2005 NY Slip Op 51543(U)
Summary: Plaintiff/husband sought to enforce a prenuptial agreement. The Defendant wife sought to set it aside due to fraud, duress, unconscionability, and lack of independent counsel. The prenuptial agreement provided that the plaintiff/husband waived any child support payments to the defendant/wife. The court held that while there is a strong public policy ordering parties to decide their own interests through contractual arrangements, child support trumps any such interests. Courts retain jurisdiction to act in the child’s best interest. Therefore, the court held that eliminating a party’s child support obligation is void as against public policy and such a portion in a pre-marital agreement will be set aside.
Moral of the story: Child Support. Without question, a provision in an agreement eliminating a party’s child support obligation is void as against public policy.
Colello v. Colello, 9 A.D.3d 855, 780 N.Y.S.2d 450 (2004)
Summary: Wife brought an action to invalidate the Prenuptial Agreement on multiple grounds.
Specific causes of action for invalidation included lack of consideration, allegations of duress, fraud in the inducement of the agreement, breach of a fiduciary duty, “absence of a meeting of the minds,” and unconscionability.
With respect to the allegation of lack of consideration, the Court concluded that because mutual promises like the mutual promises in the agreement constitute valid consideration, and those mutual promises included the waiver of each party’s rights to the other’s separate property, the party defendant was entitled to summary judgment.
The wife alleged duress and the Court concluded that the husband’s threat to cancel the wedding if wife did not sign the Prenuptial Agreement does not constitute duress. The Court reasoned that “As a matter of law, [the] exercise or threatened exercise of a legal right [does] not amount to duress.” The Wife also alleged that the attorney representing her in the Prenuptial Agreement negotiations was chosen and paid for by the husband, but the Court ruled that this fact does not by itself sustain her claim of duress.
Wife alleged fraud in the inducement of the agreement. Fraud in the inducement “requires a promise made ‘with the undisclosed intention not to perform it’ ” The husband established that he intended to perform all of the promises contained in the prenuptial agreement at the time it was executed, and therefore the Court concluded that this issue was moot.
Moral of the story: Property waivers will generally be upheld in prenuptial agreements. The statute requires that the Prenuptial Agreement be
“fair and reasonable at the time of the making of the agreement” and not “unconscionable at the time of entry of final judgment.” (N.Y. Dom. Rel. Law §236(B)(3). This language appears only in clause (3) of this statute DRL §236(B)(3), and has been interpreted as being applied to support or maintenance provisions in a prenuptial agreement, and not to Separate Property provisions. Want to read about this more in depth? Check out this article.
Cron v. Cron, 8 A.D.3d 186;780 N.Y.S.2d 121 (1st Dept. 2004)
Summary: A wife sought rescission of the parties’ prenuptial agreement in a divorce action. She claimed that her waiver of maintenance was unconscionable and placed her in danger of becoming a public charge. The court denied the wife’s claims and found that due to the wife’s assets, she was not in danger of becoming a public charge and her waiver of maintenance was not unconscionable. The court refused to invalidate the prenuptial agreement and found that it was not unconscionable.
Moral of the Story: An unconscionable bargain is “one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other.”
Goldfarb v. Goldfarb, 647 N.Y.S.2d 243, 231 A.D.2d 491 (N.Y. App. Div. 1996)
“A duly executed agreement is provided the same presumption of legality as any other contract (see, Forsberg v. Forsberg, 219 A.D.2d 615, 631 N.Y.S.2d 709; Eckstein v. Eckstein, 129 A.D.2d 552, 553, 514 N.Y.S.2d 47; see also, General Obligations Law § 3-303). The record indicates that the antenuptial agreement was signed by both parties and formally acknowledged. Thus, the agreement is presumed to be valid and the burden is upon the defendant to produce evidence to the contrary.”
The Appeals Court Case of Herr v. Herr
Kelly and James, who had each gone through a divorce before dating, began to discuss the idea of a prenuptial agreement as a way to overcome their reluctance to marry, and to preserve certain assets for their children from their previous marriages. When James presented an initial draft of the prenuptial agreement to Kelly, she objected to it because the agreement did not provide for her in the event that James died during the marriage. The agreement was revised to include language that it would not preclude Kelly from making claims on James’ separate property in the event of his death during the marriage, among other changes. Kelly and James married two days later.
In 2010, Kelly filed for divorce and moved set aside the prenuptial agreement (legal talk for ‘did not want it enforced”). The Supreme Court, which presides over divorce cases in New York found that the evidence did not support Kelly’s contention that she signed the agreement under duress or coercion. The lower Court however, held that that the terms of the agreement were unconscionable because “they did not allow plaintiff any interest in defendant’s property in the event that the marriage terminated by his death and, since that was the provision that plaintiff had insisted on, she could not have understood its language.” So, the lower Court deemed the Prenuptial agreement unenforceable, and James filed an appeal.
The Appeals Court agreed that the lower Court had made an error in deeming the agreement unenforceable because of the death provision. The Court reasoned that, “Duly executed prenuptial agreements are generally valid and enforceable given the strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements” citing New York case Van Kipnis v Van Kipnis.
The Court stated that “so long as the agreement is fair on its face, it will be enforced according to its terms absent proof of fraud, duress, overreaching or unconscionability” and cited the case Darrin v Darrin. The Court further explained that “an agreement will not be set aside simply because a party relinquished more than the law would have provided,” citing New York Prenuptial Agreement cases Cioffi-Petrakis v Petrakis, and Cheruvu v Cheruvu.
For the entire fine print, check out the case text here
Werther v. Werther
Kristina and and Joseph Werther were married in 1990, after meeting about 5 years earlier, and dating about a year before marriage. Joseph was still married to his former wife at the time, but was in the process of divorce. Kristina had been married four times prior to meeting Joseph, so needless to say, the couple had a lot of common ground in the marriage-divorce department. Due to their, shall we call it, expansive experience with divorce, the couple decided to enter into a Prenuptial Agreement. Here’s where it gets a little muddy. Joseph says that his attorney presented Kristina with the prenup before the wedding, because she chose not to obtain legal representation. Kristina on the other hand, claims she was presented with the agreement on the morning of their wedding.
The Prenuptial Agreement provided, the following, among other points:
- Joseph would not pay any future child support
- Joseph would not pay spousal support
- Each party would retain their premarital property
- Property acquired after the marriage would divided equally
- By the morning of the wedding, the couple had not signed the prenup. Because – – Joseph did not want to get married without it, the couple went to a bank branch near their homes and signed the Prenuptial Agreement in front of a Notary.
The Court stated that the Prenuptial Agreement was properly executed with the appropriate formalities dictated by New York Domestic Relations Statute §236, Part B(3), detailing the formalities necessary for a valid agreement: 1. The Agreement was in writing; It was signed by the parties; and it was witnessed by a notary. The Court went on to state that “a duly executed Prenuptial Agreement is given the same presumption of legality as any other contract, commercial or otherwise, and is not, regardless of the fairness and reasonableness of the agreement, burdened by a presumption of fraud arising from the subsequent confidential relationship of the parties,” citing Eckstein v. Eckstein and Panossian v. Panossian. The Court further reasoned that a party seeking to set aside a Prenuptial Agreement will bear a high burden, and must show that the agreement is “manifestly unfair” and that “this unfairness was the result of overreaching on the part of the other party to the agreement,” citing Bronfman v. Bronfman, 229 AD2d 314 [1st Dept. 1996]
The Court upheld the Prenuptial Agreement for many different reasons, including stating that the facts did not support Kristina’s claim that she was not advised of the effect of the Prenuptial Agreement and therefore did not understand it, and did not enter into the agreement willingly. In addition, the Court did not fall for Kristina’s argument of duress, and reasoned that “a party who executes a contract under alleged duress or over overreaching and then acquiesces in the agreement for any considerable length of time is barred from suddenly raising issues of overreaching or duress,” citing Sheindlin v. Sheindlin. Kristina alleged that the Prenuptial Agreement was unconscionable with respect to both the property distribution and spousal support and child support provisions. The Court rejected her arguments that the agreement was unconscionable with respect to the property distribution, and reasoned that to establish unconscionability in connection with the agreement regarding property, there must be overreaching, fraud or duress, none of which had been demonstrated.
The Court sided with Kristina regarding the Spousal Support and Child Support provisions. First, the Court reasoned that parties to a Prenuptial Agreement may waive spousal support provided neither party is likely to become a public charge, and although Kristina’s waiver of spousal maintenance (aka support) would not likely result in her becoming a public charge, the waiver of support was not fair and reasonable in view of the parties disparate financial circumstances. In addition, the Court explained their reasoning as to why a waiver of child support is not enforceable in a New York Prenuptial Agreement, even though the parties did not have any children together at the time of their marriage. The Court reasoned that. “while there is a strong public policy favoring individuals ordering and deciding their own interests through … Prenuptial Agreements, child support trumps such an interest.” The Court affirmed that contracting away the right to child support is always void, as against public policy.
Lastly, Kristina asserted that the Prenuptial Agreement should be invalidated because she was not represented by an attorney. The Court disagreed and upheld the agreement, and reasoned that while lack of attorney representation is a factor to be considered in determining whether the Prenuptial Agreement should be set aside, it is not in itself evidence of unconscionability, duress or fraud, sufficient enough to invalidate the agreement. The Court further added that, “this is especially true where one of the parties to the agreement makes a conscious decision not to retain an attorney despite being advised to do so.” The Court concluded that the record was “devoid of any evidence of coercion or undue influence exercised on the part of the attorney or the plaintiff.”
New York Statutes and Case Law re: Child’s Rights
Statutes: DRL § 236, Part B (subd. 3, clause 4) – prenup provisions as to children generally
“Such an agreement may include… (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.”
DRL § 240 (subd. 1-b) (h)– child support
“A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court’s reasons for such deviation.”
Eschbach v Eschbach, 56 NY2d 167 (1982)
While the couple in this case didn’t have a prenup, after splitting up, they did create a separation agreement. The concept is similar but as the name suggests, it is completed after the couple separates. In the agreement, the spouses agreed that the wife should have primary custody of their two children. During divorce and custody proceedings, the court honored the couple’s agreement. However, years later, the arrangement was not working out. The father sought modification of the custody arrangement. While the court gives great weight and priority to agreements regarding which parent should have custody, no agreement of the parties can bind the court or prevent it from making a determination that is in the best interest of the child. Ultimately, the court went against the couple’s prior agreement and modified the custody arrangement finding that it was in the best interest of the children to do so.
Martin v Martin, 283 AD 721 (2d Dept 1954), affd, 308 NY 136 (1954)
In this couple’s prenup, they specified that any children they had during their marriage were to be raised in the Roman Catholic faith. However, the mother later sent the couple’s son to a Christian Science Sunday School. While parties are free to include religious and educational provisions regarding their children in their prenups, they are only enforceable to the extent that the agreement is in the best interest of the child. So, despite the prenuptial agreement, the court determined that it was in the child’s best interest to go to the Christian Science school as that was his preference.
Tartaglia v Tartaglia, 260 AD2d 628 (2d Dept 1999)
A provision in a separation agreement that deviated from the statutory child support formula was invalidated because it failed to include statements that the parties had been apprised of their rights under the CSSA, the amount that would have been awarded under the CSSA, and the reason for deviating from the CSSA amount as required by DRL § 240 (subd. 1-b).
Hampton v Hampton, 261 AD2d 362 (2d Dept 1999)
In the couple’s separation agreement, they included an arbitration clause for child support issues. The father argued that the provision could not be enforced because only the court could make child support determinations. The court disagreed. However, while the couple could validly arbitrate the issue, the court still had the power to vacate the arbitration decision if the child support award did not comply with the Child Support Standards Act (CSSA) or the best interests of the child. But see Glauber v Glauber, 192 AD2d 94 (2d Dept 1993) (“We conclude that custody of and visitation with children must be added to this list [of issues which are not subject to arbitration] because this subject, “on its face”, is inappropriate for resolution by arbitration”).
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