At one time, prenuptial agreements were regarded as a formality, and an insulting one at that. Today, however, they are becoming the norm, especially for couples with high net worth.

In a prenuptial agreement, you and your future spouse disclose and itemize all the assets you own prior to getting married, and then agree on how any money and property will be divided in the event that the marriage ends. These agreements are valid and enforceable as long as it was voluntarily entered into, asset disclosure was complete, and the contents are fair to both sides.

Creating a valid prenuptial agreement

At one time, prenuptial agreements in New York were difficult to void. Then courts began to acknowledge defensible grounds for wanting to revoke an agreement. In 2013 Elizabeth Petrakis, wife of Long Island real estate millionaire Peter Petrakis, succeeded in having her prenuptial agreement overturned.

The document stated that if the couple split up, Peter would keep everything in his name. Elizabeth claimed that he had coerced her to sign, threatening to call off the wedding if she refused, and promised to tear it up as soon as children arrived. In February 2013 a Brooklyn Appellate Court panel unanimously concluded that Elizabeth had been induced via fraud to sign the prenup.

This court decision and others like them confirm that prenuptial agreements may be subject to dissolution if conditions like the following apply:

  • It was signed under duress
  • The agreement was coerced
  • At least one of the parties lacked the mental capacity to understand what they were signing
  • The contents are fraudulent (e.g. one or both parties failed to make a full disclosure of their assets and/or undervalued them)
  • The parties signed without separate and independent legal counsel
  • The agreement is unconscionable and/or favors one spouse over the other

Odd stipulations will also raise eyebrows in Family Court. For example, if there are provisions about weight gain, sexual relations, or a stay-at-home spouse getting a job, they are not likely to hold up in court. Even if a prenuptial agreement says that no child support will be paid in the event of a divorce, a judge will almost certainly refuse to uphold it.

Definition of marital assets

The rule of thumb is that if money or property are acquired during the marriage, it is marital property. The most common example is the marital home, but it can include:

  • Stock accounts
  • Businesses
  • An IRA or 401(k)
  • Licenses such as a medical, CPA or attorney’s license
  • Degrees that can increase earnings, such as a Ph.D.

Even if you acquire something before marriage, there is no guarantee that it will always remain separate property. A properly created prenuptial agreement can protect your personal assets from becoming marital property and ensure that any property distribution that does occur is fair and equitable.

Prenuptial agreements in New York can be a complex issue. For that reason it is important to contact a New York family law attorney who can help you draft an agreement that is fair, equitable, and ultimately enforceable. Jayson Lutzky has over 33 years of experience practicing law. He represents clients from all five boroughs of New York City as well as the surrounding counties in New York. He offers free in-office consultations at his Bronx, NY office. Please call 718-514-6619 to schedule an appointment to learn more about prenuptial agreements. Visit www.MyNewYorkCityLawyer.com for additional contact information.