Prenuptial Agreements

A prenuptial agreement is a contract between you and your future spouse that is entered into before marriage. In a prenuptial agreement, you and your spouse disclose to each other all the money and property you own before getting married.  Then, you set forth the rights and responsibilities each of you will have during the marriage, including how you will divide your money and property in the event of divorce or the death of one or both of you.

Although New York law already determines how property should be divided in the event a marriage ends in divorce or death, courts will recognize a valid prenuptial agreement that may be different from how New York law would divide the property. The prenuptial agreement takes the control over your property and assets away from the state and places it in the hands of you and your spouse.

A prenuptial agreement is valid and can be enforced as long as it protects both you and your spouse and it was entered into with a full and fair disclosure of all assets by both you and your spouse. The agreement must also be executed and acknowledged with the full formality required for a property deed to be recorded.

A prenuptial agreement can address many different issues, including:

• Defining separate property – the property and assets you bring to a marriage are called separate property. As long as you keep your separate property separate from the property you and your spouse obtain together, the separate property continues to belong to you alone during and after your marriage. A prenuptial agreement should specifically identify which property is separate property for each of you. However, if you do not keep your separate property separate (in your own name only) then despite the prenuptial agreement, such property may later be considered marital property and divided equally between you in a divorce.
• Examples:
  • You own a house prior to the marriage, and you and your spouse will live in the house during the marriage. You want to be sure that if you divorce, the house remains your sole property. A prenuptial agreement will help you do this, but you should nevertheless keep sole title to the house unless you want to make a gift to your spouse.
  • You each bring an amount of cash to the marriage which is deposited into a joint account. If you divorce later, those funds will probably be considered marital property.
  • You will receive a large inheritance shortly after the marriage, and you want to make sure it is not considered marital property. You should always keep such funds in your own name unless you want to make a gift to your spouse. By law, inheritances are separate property, as long as the funds are held in the recipient’s sole name, but if there is a prenuptial agreement, it should confirm the inheritance will be separate property.
• Defining marital property – just as you can identify each spouse’s separate property in a prenuptial agreement, you can identify property you want to be considered as marital property, even if it is actually separate property.
• Establishing maintenance – a prenuptial agreement can establish maintenance for you or your spouse during the marriage, particularly if one of you is giving up a career to “raise the kids.” Also, a prenuptial agreement can establish what kind of support you or your spouse will pay to the other spouse during or after a divorce, or establish that there will be no support if you divorce later .
• Establishing support for children of a prior marriage – if you bring minor children to a marriage and your spouse does not adopt them, a prenuptial agreement can help make sure the children are provided for if you and your spouse divorce.
• Establishing pre-marriage debt – if you or your spouse brings substantial debt to the marriage, the prenuptial agreement can state that the debt stays with that spouse.
• Child support and child custody/visitation – A prenuptial agreement cannot definitively address child support issues or custody issues for unborn children. Such issues must be resolved based on circumstances at the time of a separation or divorce. A court is obligated by New York law to determine whether child support and custody arrangements are in the best interests of a child, so such issues will ultimately be reviewed by the court.

While prenuptial agreements are presumed to be enforceable, you or your spouse may challenge the validity of a prenuptial agreement for certain reasons, including:

• Separate Attorneys – you and your spouse should have separate attorneys if you are going to enter into a prenuptial agreement. If you do not have separate attorneys, the court will look at your prenuptial agreement more closely for unfairness and may not enforce the prenuptial agreement.
• Fraud – if you or your spouse fails to disclose your assets honestly, or if you hide your assets, a court may not enforce the prenuptial agreement.
• Coercion/Duress – if either you or your spouse uses pressure to get the prenuptial agreement signed or does not give the other enough time to consider the prenuptial agreement, the court may not enforce the prenuptial agreement.
• Unfair and Inequitable – if the prenuptial agreement favors you or your spouse unfairly, for example by leaving the other spouse with nothing, the court may not enforce the prenuptial agreement.

Legal Editors: Charlotte Lee and Dalit Yarden, February 2015 (updated June 2020)