Protecting Your Rights and Property with a Prenuptial Agreement

August 19, 2015

Many people hear the words “prenuptial agreement” and cringe. Images of a loveless marriage, devoid of romance and based on financial worth can arise. Luckily, these images are false, unrealistic and outdated. A prenuptial agreement – also known as an antenuptial agreement, premarital agreement or prenup – is a valuable legal tool that protects the interests of both you and your spouse. For many couples, a well-drafted premarital agreement actually increases the chances that the marriage will succeed by giving both parties confidence that they are entering into the marriage on equal footing and fully informed of what each person brings into the marriage. These couples see the agreement as a kind of “marriage insurance.”

It is always best to have a prenup drafted by a skilled family law attorney. Someone with in-depth knowledge of the legal nuances that could possibly affect the enforceability of these agreements can reduce the likelihood that there could be conflict in the unfortunate event that the marriage ends.

In order for a prenuptial agreement to be enforceable in New York, certain conditions must be met. Someone intimately familiar with drafting and seeking enforcement of such contracts – an experienced lawyer – understands what is necessary under the law and will help the parties create an agreement with the best possible chance of success. New York’s Domestic Relations Law requires that a premarital contract be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” In more detail, a prenuptial agreement must:

• Be in writing – oral prenuptial agreements are presumptively invalid
• Executed voluntarily and without duress or coercion
• Be based on full and fair disclosure of assets, special conditions and other potentially mitigating factors
• Not be wholly unfair to one party
• Have been signed in front of a qualified notary public
• Not address issues relating to children of the marriage – such provisions are per se unenforceable

Prenuptial agreements can serve a wide range of purposes, including:

• Protecting future income derived from possession of a professional degree, professional licensure or special skill (i.e., acting, singing, dance)
• Warding off future disputes regarding alimony awards
• Ensuring that anticipated inheritances or gifts are kept separate property
• Assigning business ownership specifically to one party
• Preventing funds that are designated for a specific purpose (caring for elderly parents or special needs children, putting children through college or others) from being divided

An experienced family law attorney can guide you through the process of drafting a prenuptial agreement that should be enforceable. Contact Jonathan D. Katz, a New York family lawyer for more information about premarital agreements.