NEW YORK PRENUP LAW

Not only does getting a prenuptial agreement NOT lead to more divorces, it turns out it’s actually one of the best ways to make sure that both you and your loved one are taken care of, no matter what. That’s why we’ve made it simple and painless to get a prenup.

Understanding the law is essential to making sure your prenuptial agreement, also known as an antenuptial agreement, is proper and valid.

At NYC Prenup we have four suggestions to ensure proper compliance:

First, both you and your significant other must sign the prenuptial agreement voluntarily. You can't pressure your spouse into signing the agreement.

Second, your prenup must be fair and reasonable given the circumstances. There is no specific guideline for this, but if you have millions of dollars and your spouse has no money, you can't leave your significant other with nothing in the event of separation or divorce.

Third, you and your significant other need to be honest with each other and disclose your assets, debts and income. If you lie about how much money you have, the court may invalidate your prenuptial agreement.

Fourth, you and your significant other need the opportunity to have a lawyer review the agreement. This requirement is problematic for many of the online prenuptial agreement websites offered discount agreements. Here at NYC Prenup, a lawyer licensed to practice in New York drafts and reviews your agreement prior to sending it to you. If your significant other desires to consult a different lawyer, we can arrange a discounted meeting or telephone consultation.

Under New York state law, an agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.

New York law provides that a premarital agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms of use of the marriage relationship, provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties,

New York Domestic Relations Law § 236(B)(3) authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends. Domestic Relations Law § 236(B)(3) states that a nuptial agreement made before or during the marriage must satisfy three requirements to be "valid and enforceable in a matrimonial action." First, the agreement must be in writing. Second, it must be subscribed by the parties and third, it must be "acknowledged or proven in the manner required to entitle a deed to be recorded."

New York law defines both "marital property" and "separate property" and provides that, unless there is a duly executed prenuptial agreement, " marital property" must be equitably distributed and " separate property" must remain separate. The statute thus permits parties to either expressly waive or opt out of the statutory scheme governing equitable distribution or to, specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under New York Domestic Relations Law § 236(B)(5). Although the parties' intent must be clearly evidenced by the writing, there is no categorical requirement that a prenuptial agreement must set forth an express waiver of equitable distribution.

Courts, however, may scrutinize agreements between spouses more closely than general business contracts to ensure that the agreement was entered into freely and is not unconscionable. For example, an agreement concerning the amount and duration of spousal maintenance must be fair and reasonable at the time it is made, and not unconscionable at the time of entry of final judgment in the divorce action. Further, no spouse may relieve the other of the requirement of support to the extent that the spouse may become a public charge. An agreement as to child support must set forth the amount of child support that would be owed under the relevant guidelines and, if the amount agreed to deviates from the same, an explanation why. Moreover, even if the agreement complies with the statutory requirements, the courts retain discretion with respect to child support. Similarly, a prenuptial agreement as to child custody is not binding on the court. Nor is an agreement concerning the physical location of a child subject to a joint or shared custody arrangement.

However, judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging the parties to settle their differences on their own. For example, a separation agreement is not per se unconscionable simply because marital assets are divided unequally because one spouse gave away more than that spouse might have been legally required to do, or because the spouse's decision to approve the agreement might be characterized as unwise. A party seeking to rescind a separation agreement . . . has the burden of showing that the agreement was the result of fraud, duress or overreaching or that its terms were unconscionable.

Below are some recent New York prenuptial agreement cases where the courts have looked at the validity of specific prenups. 

Gottlieb v. Gottlieb, 25 N.Y.S. 3d 90, 138 A.D.3d 30 (2016):

Court upheld prenuptial agreement as valid and enforceable and would not “invalidate the agreement merely because the husband has more than enough assets to give the wife additional funds.” Court found that “the wife bargained for the benefits she would receive in the event of a divorce, and [declined] to undo the agreement merely because she may now, in retrospect, view her choices as having been improvidently made.” Court also declined to invalidate the agreement on the grounds that “the terms do not match ‘the degree of economic interdependence’ the parties shared during the marriage.”

Gutherz v. Gutherz, 992 N.Y.S.2d 158 (2014):

Court found that wife failed to meet burden of proof to invalidate prenuptial agreement. Court held that “an alleged failure to disclose assets does not, standing alone, constitute fraud or overreaching sufficient to vitiate an agreement, particularly in the absence of evidence of an attempt to conceal or misrepresent the nature or extent of the assets.” Court also declined to find that agreement should be set aside because wife waived her right to spousal maintenance given that the maintenance provisions were fair and reasonable when the prenuptial agreement was executed and at the time of entry of final judgment.

A.N. v. E.N., 960 N.Y.S.2d 48 (2012):

Court set aside prenuptial agreement on the grounds of it being unconscionable, overreaching and duress during the execution of the agreement where the wife had no input in negotiating the terms and the agreement was entirely one-sided in favor of the husband. There was no bargained-for benefit for the wife and the terms of the agreement the wife actually signed were very different from the terms of the agreement she thought she was signing.  

E.C.-P. v. P.P., 946 N.Y.S.2d 66 (2011):

Court rescinded the prenuptial agreement where husband fraudulently induced wife to sign the prenuptial agreement with promises that he would tear up the agreement after they had a child, and that, at the time the promises were made, the husband had no intention of honoring or fulfilling the promises, and the wife, due to the nature and extent of the parties' relationship, justifiably placed her absolute trust and confidence in her future husband's representations and promises to her detriment and was damaged by being denied a share of significant marital property.

New York Domestic Relations Law governs the enforcement of prenuptial agreements for New York State including Kings County, Queens County, New York County, Suffolk County, Bronx County and Nassau County.

NYC Prenup guarantees your prenuptial agreement will comply with New York law.