In New York, Prenuptial Agreements are formally referred to as Antenuptial Agreements, and they are written contracts that couples enter into prior to marriage. New York’s Domestic Relations Law allows couples to change the default divorce and marriage laws that would otherwise apply by entering into a written agreement before (or after) marriage. N.Y. Dom. Rel. Law § 236 and other sections set forth the requirements for entering into a legally enforceable New York Antenuptial Agreement, including the content that can and cannot be included in a premarital contract.
Importantly, you must have sufficient “nexus” to New York to justify having a New York prenuptial agreement (for example, one party is a New York resident, owns property in New York, you are getting married in New York).
The terms of a prenup agreement are very personal. There is not a “one size fits all” standard New York prenup agreement template that will work for every couple. Every couple getting married is unique, with different goals and needs.
DID YOU KNOW? A New York premarital agreement is a private document between a marrying couple, and no one else. A New York Antenuptial Agreement does not get filed with any local, state or federal agency, and couples often choose to keep the terms confidential.
WHAT TERMS CAN BE IN A NEW YORK PREMARITAL AGREEMENT?
When a New York couple gets married without a written premarital agreement, they have basically agreed to have their rights determined by a default set of marital and divorce laws that they might not understand, and which may not suit their needs and goals.
In contrast, a written prenuptial agreement signed before marriage allows spouses to take control of their destiny in the unfortunate event of separation and divorce by pre-negotiating the path of least resistance and what is in the best interest for both parties.
How do couples decide what to put in a New York Prenup?
From a big-picture perspective, the content and terms of New York prenups are generally driven by a couple’s desire to “opt out” of certain default New York laws that would otherwise determine their marital rights, but which laws might not be bad for them and/or might lead to fighting in the event of a divorce.
So, New York premarital agreements are essentially written to allow a couple to agree on marital rights and divorce terms that supersede and replace those New York divorce laws that often force couples to lawyer up and battle it out in court.
Here are a few examples of terms commonly found in New York Antenuptial Agreements.
KEEPING SEPARATE PROPERTY SEPARATE
A popular use of a New York prenuptial agreement is to keep each spouse’s Separate Property separate during the marriage, completely free from any marital claims in the event the marriage is dissolved. When couples decide to keep their respective Separate Property separate, it typically includes separate property owned prior to marriage, and separate property purchased or inherited during the marriage. A couple can also choose to keep income and debt resulting from separate property separate.
Section 236 B(5) of New York’s Domestic Relations Law allows parties to agree to what rights they have to their Separate Property and their jointly-owned Marital Property (discussed below).
HOW TO SPLIT MARITAL PROPERTY
In New York, spouses who do not have a written prenuptial agreement have their marital property divided by the divorce court based on a system called equitable distribution. New York is one of more than forty states that has adopted an equitable distribution law for dividing marital property and debts in a divorce, unless the spouses have contracted in writing for a different method of property division.
Equitable distribution does not automatically mean an even division of marital property, because the court will split the property between spouses in a way that is equitable based on the entire picture of the couple’s finances. Under New York’s Equitable Distribution law, there are 14 factors that a New York court must consider when dividing a divorcing couple’s marital property, which include:
Their monetary and non-monetary contributions to the well-being of the family, and to the acquisition and care of their marital property;
How and when specific items of marital property were acquired;
The ages and health of the spouses;
How long they were married;
Whether either spouse has a pension or expects retirement benefits;
Whether either spouse can support his or herself financially; and
Any other factor the court considers relevant.
SHOULD WE CONSIDER A
NEW YORK PRENUP?
Unfortunately, many marriages don’t have a fairytale ending. According to analysts and attorneys:
41% to 50% of first marriages end in divorce
60 to 67% of second marriages end in divorce
About 74% of third marriages fail
Responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. With the chances of a “marital disaster” approaching 50% or higher, it might be worth at least considering the pros and cons of a NY prenup.
What is the #1 Reason to Consider a Prenup?
Importantly, when dividing assets a New York divorce court can also factor in bad behavior, as it must consider the “wasteful dissipation of assets by either spouse” (N.Y. Dom. Rel. Law § 236(B)). Those bad acts will count against that spouse when the court evaluates of how the property should be equitably divided. The takeaway from this observation? New York’s equitable distribution system incentivizes a divorcing couple to assign blame in order to get the “best deal” from the court, which can escalate the emotional scarring for all family members affected by the separation.
N.Y. Dom. Rel. Law § 236 allows couples to agree on how to divide their separate and Marital Property. Today, it is increasingly common for couples elect to enter into a written premarital agreement that avoids the need to ever have a divorce court divide their marital property by equitable distribution.
Many couples “pre-agree” that it is in their best interests to have a written prenup that would divide their joint property evenly, rather than risking an expensive and emotionally draining court battle under the equitable distribution system.
New York Prenups often include specific terms relating to major assets that spouses may purchase together during marriage, such as real estate. For instance, a New York prenuptial agreement might split all of a couple’s marital property 50/50, except for real estate they purchase together which gets divided pro rata, according to each spouse’s percentage of contributions to the property.
ALIMONY (SPOUSAL SUPPORT) IN NEW YORK
The right to receive alimony or spousal support after a divorce is another major topic that couples frequently address in a written prenuptial agreement, because the New York Alimony Laws often leave spouses no real choice but to hire divorce lawyers to fight over alimony in court.
When deciding whether to award alimony/support to a spouse at all, a New York court considers the factors and circumstances that led to the divorce, including the relative fault of the parties (e.g. adultery). In figuring out the amount of alimony to award and for how long, New York law requires the court to consider many different factors, one of which is how the marital property will be equitably distributed (as described above).
A marrying couple that leaves alimony for a divorce court to decide has essentially agreed to battle it out in a public forum with little or no certainty as to the eventual outcome.
Alternatively, § 236(B)(3) of the New York Domestic Relations Law allows couples to agree on a wide variety of spousal support terms, because everyone’s situation is unique.
It is very common for New York couples to enter into a premarital agreement under which they completely waive the right to receive alimony/spousal support in the event of divorce. However, many people are pleasantly surprised to learn that a New York prenup agreement can actually guarantee the right to payment of some minimum amount of alimony if the marriage is dissolved (e.g. a lump sum payment of $50,000 upon divorce). Frequently couples choose to allow -- but limit -- the amount of alimony available to either of them upon divorce, so that each party knows their “worst case” scenario in the event of a divorce.
Some couples agree to allow a spouse who is unemployed at the time of separation leading to divorce (e.g. a stay-at-home parent situation) to seek some pre-agreed amount of alimony, but otherwise waive the right to seek spousal support if both are employed. For the most part, a couple entering into a prenup in New York can freely agree to whatever alimony terms make them comfortable to enter the marriage, given their unique personal situation.
Omitting spousal support terms from a prenuptial agreement just leaves the spouses to rely on default state laws in the event of divorce, and the discretion of a divorce judge. Couples who agree on pre-defined alimony payment terms in their New York premarital agreement can enjoy peace of mind that enables them to embark on the wonderful roller coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
A divorcing couple that entered into a New York antenuptial agreement before getting married has a contract that provides certainty as to their rights, minimizes conflict, hostility, and legal costs. A well-drafted prenup is like a roadmap that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process. Signing a written premarital agreement also provides some certainty as to their marital and divorce rights under New York law.
IMPORTANT: There are many other terms that are typically included in New York Antenuptial Agreements beyond those premarital concepts introduced above. The above list of concepts commonly included in New York premarital agreements is not at all exhaustive.
If you are engaged to be married and interested in learning more about Prenuptial Agreements in New York, please accept our invitation to schedule a free consultation with a Prenup Pros attorney 1-6 months before your anticipated wedding date.
COST OF A NEW YORK PRENUP - $1,295.00
PRENUP PLANNING CONSULTATION. Your attorney will schedule a call with you to explore the terms to include in your prenup that will best fit your needs, and answer any questions you may have. This conversation is a critical part of the process because your input is what allows us to draft a custom agreement for your specific situation.
FAST TURNAROUND. Your draft will be completed and sent to you for review within five (5) business days after we get all of the information we need to prepare your customized premarital agreement.
PRENUP REVIEW CONSULTATION. After you and your fiancé have had the opportunity to read and discuss your prenuptial agreement, you will schedule a follow-up call with your attorney. During this call your attorney will answer any questions, make sure you understand the document, and discuss any changes that may be needed.
PRIVACY. The information you share and everything you discuss with your attorney is protected by the attorney-client privilege.
A CUSTOMIZED, READY-TO-SIGN PRENUP. Your attorney will make any changes needed to finalize your prenuptial agreement based on the follow-up call, and send it to you for signature.