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 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.
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.
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.
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.