An introduction to New York premarital agreements

Prenuptial agreements can be useful tools for people contemplating marriage to plan for future events like divorce or death.

Premarital agreements, also called prenuptial or antenuptial agreements, are valid, binding contracts between future spouses that usually control how they will handle certain legal issues like alimony and division of assets in case of divorce. People also use "prenups" to predetermine how similar issues will be resolved at a future spouse's death, to specify property ownership or property characterization, to handle how pre-existing debts will be paid, to provide for ownership and control of a family business or for a host of similar issues.

The basics

While traditionally the prenuptial agreement may have triggered the image of the stereotype of a wealthier spouse hoarding assets from the less-well-off spouse, when each party has legal representation and full disclosure of the assets and debts of the other, premarital agreements can serve useful purposes.

New York law sets out detailed requirements for premarital agreements to be valid, including standards of fairness, asset and debt disclosure, and specific, formal execution requirements.

Common uses

These are examples of situations that might lend themselves to a prenuptial agreement:

  • Future spouses with dramatically different wealth want to preserve their property rights
  • Older spouses with children from previous marriages or relationships before entering second or multiple marriages want to protect their children's ownership interests in wealth and heirlooms generated during those previous marriages
  • Couples contemplating marriage who have a history of cohabitation and comingling of their assets may want to clarify their interests
  • A person contemplating marriage who cares for a disabled loved one may want to provide for preservation of assets to continue that care
  • A future spouse with ownership interests in a family business may need to clarify the future role of the other spouse in the business as well as that person's ownership interests during marriage, upon divorce or at the future spouse's death
  • Some people want to predetermine how they will handle alimony or property division at divorce
  • And other situations

Legal counsel important

At the first thought or mention of a potential prenuptial agreement, a future spouse should seek legal advice. The more time between the prenuptial agreement negotiation and the wedding, the better, because there is less possibility that either party will feel pressured or in extreme cases under duress to sign. It is important that both parties have access to their own legal counsel so that each can get frank, informed advice about the ramifications of the agreement's proposed terms.

An attorney can provide several services related to premarital agreements:

  • Advising and educating
  • Negotiating
  • Drafting
  • Reviewing
  • Challenging, enforcing or defending them in court

A spouse may challenge a premarital agreement in court if there is evidence it was entered into under certain unlawful conditions like those concerning fraud, coercion, duress and extreme unfairness.

Postmarital agreements

A postmarital agreement is a similar binding contract, but the parties negotiate and execute it after marriage. Sometimes a postmarital agreement is a tool to revise and change the terms of a premarital agreement, in effect, if circumstances have evolved over time.

The family lawyers at Arroyo Copland & Associates, PLLC, in Albany represent and advise people in the Capital District, Hudson Valley and Upstate New York in all aspects of premarital and postmarital agreements.