New York requires prenuptial agreements to comply with statutory formalities, including being in writing and signed by each spouse. Beyond these basic structural formalities, the agreement must also be fair to each spouse -- both at the time of signing and at the time of the divorce. If a New York court decides your prenuptial agreement is unconscionable -- wasn’t fair when you signed it or isn’t fair now -- it can declare your agreement invalid. If your agreement is invalid, the court may refuse to enforce some or all of its terms.
Your prenuptial agreement might also be declared invalid if you or your spouse failed to disclose some of your assets before it was signed. New York courts don’t want to reward one spouse for hiding assets, or their full value, from the other spouse; a prenuptial agreement signed under such circumstances deprives innocent spouses of the opportunity to fully understand what they are signing. For example, if you thought your spouse had $200,000 in assets, you might be more likely to sign a prenuptial agreement waiving your right to your spouse's assets than if you had known the value of those assets was actually $2 million. Thus, if a New York court finds one spouse failed to disclose a large portion of his assets, this could invalidate the prenuptial agreement.
New York does not permit spouses to use their prenuptial agreement to sign away the rights of third parties, especially those of children. Thus, if your prenuptial agreement contains terms that alter child support or child custody, a court may remove such terms from the agreement. However, such terms are not likely to invalidate the entire agreement. For example, if your agreement states your spouse does not have to pay child support upon divorce, the court is likely to invalidate such terms, since child support belongs to the child not the parent, and leave the rest of your agreement intact.
Results of Reversal
If the court reverses your prenuptial agreement or certain terms of the agreement, New York law steps in to determine how the terms of your divorce will be decided. For example, if your entire agreement is deemed invalid, the court will evaluate specific factors set forth in New York law to divide your marital property. These factors include the income, age and health of you and your spouse and length of your marriage. New York courts must divide property equitably, which means the division must be fair but not necessarily equal.