All About Prenuptial Agreements in the State of New York
A prenuptial agreement is a contract entered into by two people prior to their marriage. In New York, the legal definition of a prenuptial agreement is a contract made in contemplation of and to be effective upon marriage between two individuals which contains provisions relating to the rights and obligations of one or both parties in any of the following respects: Before the marriage, a prenuptial agreement allows a prospective spouse to require the other prospective spouse to: It will often allow a prospective spouse to exclude any existing legal obligation to provide for the other after divorce, or to waive or forfeit a right to property of the other spouse at death, such as distributing property according to the laws of intestacy in case the surviving spouse died without a will . A premarital agreement can be used to protect the spouse of a second marriage from having to support the first spouse. A prenuptial agreement must be in writing and executed by the parties in order to be enforceable. New York law requires that a prenuptial agreement is enforceable if it is: Public policy permits spouses to contract with one another on all matters except personal rights; i.e., matters pertaining to the marriage relationship itself. The public policy protects the physical integrity of the marital relationship. However, agreements relating to divorce are not necessarily void. The courts will enforce a separation agreement if it is fair under the circumstances and the individual must not have been under compulsion or coercion when he or she signed it.
Making Sense of New York State Prenuptial Agreements: What They Must Include
A well-drafted prenuptial agreement should contain a broad overview of the individual assets of the parties, a waiver of spousal support (in case of divorce), a waiver of rights of election or right of dower in the others’ estate and a statement of support obligations (if any) upon the death of either party. Importantly, a prenuptial agreement should also contain the parties’ acknowledgement of full financial disclosure prior to the execution of the document.
Full financial disclosure is vital to the validity of a prenuptial agreement. The income statements allow the parties to ascertain their income and assets prior to the marriage. This information should provide the parties with a general idea of how they will divide their property in the event of a divorce. Full financial disclosure also establishes an estimate of how the courts may view the support obligation between the parties if a court were ever to set future support and maintenance payments.
After the prenuptial agreement has been signed, it is recommended that both spouses obtain a copy of the signed document for their respective record.
Formal Requirements for New York State Prenuptial Agreements
To be enforceable, a New York prenuptial agreement must meet several legal criteria, in addition to the requirements imposed by the statute. The first requirement is that the agreement be in writing and signed by both parties. Since the parties are free to set whatever terms they want to include in their prenup, the agreement cannot include terms that conflict with specific provisions contained in the Domestic Relations Law (the "DRL"). A third requirement is that the prenuptial agreement be entered into voluntarily. A 1998 (sic) amendment to the DRL section 236(b) provides that the agreement should not have been obtained through fraud, undue influence or overreaching. A recent case illustrates the implications of this amendment to the statute. In that case, the husband’s father paid for both a trial and an appellate attorney to represent him, but when the husband’s mother died, the father told her husband to represent himself. The husband was unsuccessful in convincing the appellate court that his wife pressured him into signing. Rather, the wife’s testifying that she really wanted her husband’s consent to the separation and her hiring an attorney, which resulted in her gaining from the agreement significantly less than the amount she would have obtained upon divorce, worked strongly in her favor. The court further found that the husband placed himself in his wife’s hands, since he did not get an attorney to advise him despite the fact that he knew his father would pay for one. Although the husband claimed that he had spoken to independent counsel, the different amounts he gave for her retainer and the retainer he had paid did not agree, nor did he have either retainer agreement. Plus, the father’s stalling tactics with the appellate attorneys also didn’t look good for the husband. A fourth requirement for a prenup to be valid, is that both spouses must be financially independent. The DRL requires that both spouses provide a full and fair disclosure of their respective financial circumstances, or that the parties waive the requirement of providing disclosures to each other. Although a spouse cannot be free from financial uncertainty, the prenuptial agreement must not render the one spouse a public charge. For example, the court held a prenuptial agreement enforcing a provision that denied a former wife of the second husband alimony to be unenforceable because it would leave her the possibility of being a public charge "in the absence of adequate means of support by another." Similarly, a prenuptial agreement that would leave a wife in poverty even though she would receive some support payments is invalid. This does not mean that a prenuptial agreement can never render a spouse a public charge. It simply means that the law will not look favorably at a prenup that frees a spouse from support, while at the same time, presenting the other spouse with the possibility of being a public charge. Caution needs to be exercised when an employment contract features a clause that limits the amount of college tuition reimbursement if the employee terminates employment. Such a clause could be construed as likely to leave a spouse a public charge if the spouse is the one who receives the college tuition reimbursement. Another new post-1990 law addresses the situation where one spouse refuses to reveal his or her financial status in order to be represented fairly. That law states that, for attorneys’ fees purposes, the court may find that the spouse who refuses to disclose lacks credibility. This does not affect earned fortune provisions. In another case, the court held that an unsupported party is entitled to discovery. It further held that there was no basis to require the supported party to pay his attorney’s fees for defending a motion to set aside a prenuptial agreement. However, the unsupported party is entitled to seek to compel the earning party to pay his or her attorney’s fees. A court will consider the circumstances of each case in deciding whether the terms of a prenuptial agreement are unconscionable.
Using the Template for the Creation of a New York State Prenuptial Agreement
Once you have selected the prenuptial agreement template that appears to fit your needs, the next step is to customize it. The first and foremost customization step will be to add or edit the following provisions: These provisions are vital to legitimate your prenuptial agreement and to ensure it survives the scrutiny of any court that may review it in the future. Once you have addressed these core issues, you can customize your agreement further by adding provisions that reflect your specific wishes and circumstances. You may also wish to exclude certain provisions, i.e., confidentiality clauses are not permitted in New York spousal support agreements. Accordingly, during this step, you should not only add provisions but also omit those that may be deemed legally unenforceable.
Upon completing the drafting of your customized agreement – place it aside for at least 24 hours. After a fresh start – examine your draft again to ensure that it complies with all the legal, financial and disclosure requirements under New York law. The next step involves a careful review of your agreement by an experienced and knowledgeable attorney before constituting it a proper legal document. This professional review is often the key step, which allows you and your spouse to effectively draft a comprehensive prenup that meets all of the mandated requirements under New York state law. Once your agreement has been reviewed by the attorney and you have obtained a list of recommended changes, you should carefully consider them. If you both agree with the suggestions – incorporate them into the document and move on to the final step of finalizing your prenuptial agreement.
Mistakes People Make When Using a Prenuptial Agreement Template
Prenuptial agreements are not simple documents to draft. They are rife with particularities and issues which can create a great deal of risk for you and your spouse. Unfortunately, there are many mistakes that couples tend to make when it comes to prenups, and the most common mistake by far is relying upon a template. A pre-made prenup might seem like an easy way around a demanding process, but using a template can have many unintended consequences.
Failing to Use Specific Language One of the biggest problems with templates—particularly templates that are designed for more general purposes and are sold for free or at a cheap price—is that you won’t get language specific to New York law. In the state of New York, there are very specific laws governing the division of assets and debts in the event of divorce, and your prenup must reflect this. It’s difficult enough to find a quality prenup template on the internet, but if the language does not reflect New York law, it could be easily challenged and deemed illegal by the courts.
Accepting a Template That Fails to Address Certain Issues The worst thing that could happen would be to use a prenup template that does not address important issues regarding your marriage or assets . A basic prenup simply won’t have the specificity you need or the language regarding New York state law and enforcement, and might leave out important details regarding things such as: Consequently, you could end up in a situation where a judge is either unwilling to enforce certain provisions simply because they were not customizable, or you’ve left out some important clauses that would have helped you secure your financial future. You don’t want to sign a prenup that is missing key information just because you don’t understand the issues at stake or you don’t know exactly what to look for in a prenup.
Failing to Update Your Template Even if you do find a solid prenup template that meets all the legal requirements and is specific enough for your needs, your life changes all the time. A prenup is not a one-size-fits-all form, and a template will not necessarily meet your needs later in life. Ideally, your prenup should be reviewed at least once a year to ensure that it continues to properly reflect your life, your spouse’s life and the ever-changing laws. Templates do not typically provide the flexibility necessary to make changes later, meaning you might have to start over from square one and lose the protections your current prenup offers.
How an Attorney Can Help with Prenuptial Agreements
One common question is, "Do I really need an attorney to prepare a prenuptial agreement for me?" That question sometimes comes from people who are thinking about having their prenuptial agreements drafted using a free online template or fill-in-the-blank form, of which there are an abundance. Those people sometimes believe that because they are completing their agreement using a pre-drafted template, it will be simple and cost little.
The fact is that one of the most important functions of a nuptial agreement is that it must comply with New York’s laws and the specific requirements of your county. A qualified attorney will ensure that your agreement meets those requirements and your premarital interests will be protected and preserved.
As we have already mentioned, even if the parties each use the same prenuptial agreement template, the end result will not be the same unless each party is represented by independent legal counsel. The parties must still negotiate agreement provisions and come to a meeting of the minds. In addition, an attorney will advise you on whether certain provisions you may want to include in your prenup are in compliance with New York law. In this regard, it is important to recognize that there are certain types of agreements that just won’t be enforced by New York Courts. For example, no New York Court would ever enforce a provision in a prenup that relieves a parent from the duty to provide child support. Additionally, every New York prenuptial agreement must contain provisions on matters concerning future children.
Finding Quality Templates for New York State Prenuptial Agreements
Reliable prenuptial agreement templates specific to New York can be difficult to find online. The Internet is rife with samples of prenuptial agreements, such as those provided by various websites as part of their legal blog or article offering. While these samples may be a good starting point, they are neither legally binding nor are specific to the laws in your particular state. As such, they are not recommended as do-it-yourself forms for those seeking a prenuptial agreement.
A few reliable online resources exist for custom prenatal agreements. One is LegalZoom, an online legal service provider. LegalZoom offers prenuptial agreement templates and related legal services at a fraction of what you would pay for an attorney , but at the risk of cutting corners with your marriage. For one price, you and your prospective spouse will also have the ability to tweak pre-written content to evolve into a form that accurately meets your specific needs.
Similarly, a service called RocketLawyer.com provides a host of different legal forms for custom creation. A subscription service, Rocket Lawyer has no upfront fee, and offers a 30-day free trial of its services.
One last option for obtaining a prenuptial agreement is to visit your local courthouse. Many clerk offices offer online access to forms once you register, while others offer printable versions only by request. Many also provide copies of prenuptial agreements at no cost through the mail, upon request.