New York State Divorce Laws on Prenuptial Agreements

By Heather Frances J.D.

Few couples enter into marriage expecting the marriage to fail, but prenuptial agreements are designed to protect both spouses’ assets if the marriage does end in divorce. State laws vary regarding permissibility and requirements for prenuptial agreements, but New York law allows couples to enter into such agreements.

Few couples enter into marriage expecting the marriage to fail, but prenuptial agreements are designed to protect both spouses’ assets if the marriage does end in divorce. State laws vary regarding permissibility and requirements for prenuptial agreements, but New York law allows couples to enter into such agreements.

Prenuptial Agreements

Prenuptial agreements describe the way a couple agrees to split their assets if they divorce, and these agreements must be signed before the marriage. Typical prenuptial agreements address spousal support and property division, but prenuptial agreements can be more detailed or more general. For example, a prenuptial agreement could specify that one spouse gets to keep a specific piece of real estate or that each spouse gets a certain portion of all real estate the couple owns at the time of the divorce.

Ready to start your LLC? Start an LLC Online Now

Fairness

New York requires prenuptial agreements to be fair -- both at the time of signing and at the time of divorce. If a prenuptial agreement is extremely lopsided, a court may deem it invalid. For example, if one spouse makes much more than the other and the prenuptial agreement prevents the lesser-earning spouse from receiving spousal support, the court could deem the agreement unfair. If circumstances arise during the marriage that make the prenuptial agreement unfair, such as one spouse becoming disabled, the court can also disregard the agreement during the divorce.

Disclosure

Spouses must have full financial disclosure before a prenuptial agreement is signed -- or a court may later consider the agreement invalid. Full disclosure of one spouse’s substantial assets allows the other spouse to decide whether to enter into the prenuptial agreement. Without such disclosure, soon-to-be spouses are incapable of making an educated decision to sign the agreement, since they would not know how much they could be entitled to if they divorced.

Restrictions

Certain topics and responsibilities cannot be contracted away in a prenuptial agreement. For example, terms of a prenuptial agreement that attempt to contract away child custody and child support responsibilities will likely be disregarded in a later divorce. Courts tend to simply ignore such terms, instead of invalidating the entire prenuptial agreement.

Ready to start your LLC? Start an LLC Online Now
Can a Prenuptial Agreement Be Reversed During a Divorce in New York?

References

Related articles

Can Child Custody Be Addressed in a Prenuptial?

Many couples, weary of the pitfalls of a messy divorce, choose to resolve any post-marriage disputes by entering into a prenuptial agreement before getting married. Since child custody and child support may be a highly contentious issue during a divorce, it might be tempting to address these issues in a prenuptial agreement. However, no state in the country allows prenuptial agreements to control issues related to the future children of the marriage.

The Challenges to Prenuptial Agreements

You may have heard the expression that a check isn't worth the paper it's printed on if the signer doesn't have any money in his account to cover it. A similar premise can apply to prenuptial agreements. A prenup is a contractual agreement entered into between potential spouses prior to marriage, ironing out details of property ownership, inheritances and financial responsibilities in advance of the wedding. If an agreement doesn't meet the letter of the law in the state where it's entered into, it may be worthless.

New York Divorce Laws on Property Distribution With the Length of Marriage

New York is an equitable distribution state so there are no hard-and-fast rules dictating how courts will distribute property in a divorce. Unlike in community property states where courts are obligated to split marital assets 50/50 between spouses, equitable distribution states give judges discretion to rule in a way they think is fair. Article 13, Section 236 of the Consolidated Laws of New York lists 13 separate factors judges can consider when dividing property, but these factors are only statutory guidelines. They're not rules.

LLCs, Corporations, Patents, Attorney Help

Related articles

Divorce & Equitable Distribution

If you and your spouse are facing divorce, you know the court is going to divide up the assets and debts you've ...

DIY Prenup in California

A prenuptial agreement is an agreement that outlines the property rights of a couple who intend to marry in the event ...

What is the Division of Assets Divorce Law?

The sharing of property between spouses is a basic component of marriage. When the legal relationship between spouses ...

Overturning a Prenuptial Agreement

Overturning a prenuptial agreement can be a little like pushing a boulder up a mountain with your shoulder. It’s ...

Browse by category