A prenuptial agreement gives you peace of mind and can save stress and conflict if your marriage ends in divorce—provided that the agreement is enforceable. Many couples spend time and money addressing their financial obligations and other key issues that arise in divorce in their prenups, only to find out later that the agreement is invalid and unenforceable under New York State law.
Here is what you need to know to make sure your prenuptial agreement is valid and enforceable in New York:
A Prenup Must Be in Writing and Witnessed by a Notary Public
Prenuptial agreements are considered “marital agreements” under NY law. To ensure that yours holds up in court in the event of divorce, it must be in writing and properly signed. This means your signatures must be properly acknowledged by a New York Notary Public. Without the proper signatures and notarization, your prenup will not be legally enforceable, and you and your spouse may be subject to New York’s equitable distribution and spousal support laws without any consideration being given for what you thought you agreed to.
A Prenuptial Agreement Must Fully Acknowledge Each Party’s Assets and Liabilities
When you and your spouse create a prenuptial agreement, you must be transparent about your entire financial situation. Withholding this information could invalidate your prenuptial agreement. Fully disclosing all of your separate property, assets, accounts, debts, and other financial obligations, ensures that you and your future spouse are properly informed when negotiating the terms of your prenup.
A Prenup Must Be a Voluntary Agreement
Neither spouse can force the other to sign a prenuptial agreement in New York. It must be a voluntary act for both parties, and neither spouse may coerce the other into signing it. Signing a prenuptial agreement under duress can be grounds for having it invalidated.
A Prenuptial Agreement Must Be Fair and Reasonable When Signed
Prenups are often thought to favor the higher-earning spouse. But for a prenup to hold up in New York courts, it must be negotiated in good faith and must be “fair and reasonable” when you sign it.
To ensure that prenups are fair and reasonable, many couples use mediation to draft agreements that reflect their specific circumstances and provide benefits to both parties. A trained mediator can help you and your spouse create a prenup that adequately addresses any unique challenges within your relationship, such as large differences in your incomes or assets, pre-existing financial obligations, or expectations that one of you may leave the workforce at some point during the marriage.
A Prenup Cannot Be Unconscionable
In addition to the terms being fair and reasonable when signed, your prenuptial agreement cannot be egregiously unfair or one-sided when it comes time to enforce it. The court may deem a prenup to be “unconscionable” if it includes unethical demands, illegal mandates, or clearly unreasonable and shockingly unfair terms.
The goal of creating a prenuptial agreement is to protect both spouses’ interests in the event of a divorce. If a prenup clearly favors one spouse or includes outrageous terms, a judge may rule that the unconscionable terms will be invalidated.
Both Parties Must Have Independent Legal Representation — or Waive the Right to It
You might assume that you and your spouse can share an attorney while drafting a prenuptial agreement — but this is not the case in New York.
Both spouses must either retain their own independent attorneys or waive their right, in writing, to independent legal representation. Waiving your right to an attorney is not advisable. This is an important and legally binding agreement. Lawyers will help ensure that each party’s rights, interests, and obligations have been properly and sufficiently addressed.
Vacca Family Law Group: Prenuptial Agreements To Secure Your Future
Are you preparing for marriage? The prenuptial agreement attorneys of Vacca Family Law Group can help you gain peace of mind and prepare for any future scenario with a comprehensive, legally valid, and enforceable prenuptial agreement in NYC.