When you’re getting ready to say, “I do,” the last thing you want to think about is that the marriage could break down one day. For many people, a prenuptial agreement is a sign that you don’t trust your partner or the relationship’s stability. The truth is that no one can predict the future, and a valid prenuptial agreement can protect your respective property rights should you ever get divorced.
Issues commonly addressed in prenups include:
- Division of marital property: New York is an equitable distribution state, meaning that if a divorcing couple cannot agree on how to divide marital property, the court will try to divide everything as fairly as possible. A prenuptial agreement can set out what happens to property accumulated during the marriage so that you have control over the outcome.
- Retention of separate property: In general, property that each spouse owned before the marriage remains their separate property upon divorce, but there are ways that such assets can become commingled with the marital estate. A prenup can help you retain ownership of a family business, a valuable heirloom, and other assets you want to keep.
- Children from previous relationships: If one or both of you have children from a prior relationship, then you can use a prenup to protect their future inheritance.
However, there are limits to what can be included in a prenuptial agreement. Below is an overview of some reasons why the court can invalidate your agreement.
One of you signed it under duress
Both parties must freely enter into a prenuptial agreement. If you ask your spouse to sign one immediately before the wedding, then they could later argue that they felt pressured and signed it to avoid postponing or canceling a ceremony that they had already planned and paid for. Prenups should be signed well in advance of the wedding and without pressure or coercion.
It is no longer fair
During the course of a marriage, each spouse’s financial circumstances can change, making an agreement that you signed at the beginning too one-sided or unfair should you divorce years later. If a prenuptial agreement compromises your rights to a fair post-divorce settlement, then it can be put aside.
Failure to disclose
For a prenup to be valid, both spouses have to make a full disclosure of their respective assets. If you discover that your spouse failed to reveal an offshore bank account or property they own in another state before the agreement was signed, then you can petition the court to have it set aside as invalid. It is best for reach to exchange a list of assets and liabilities before signing a prenuptial agreement.
One of you lacked capacity to sign
No contract is valid if one of the parties was unable to understand what they were signing. If you can prove that you lacked capacity at the time (for example, if you were mentally ill or under the influence of alcohol or drugs), then you may be able to invalidate it.
Some provisions are illegal
No state supports prenuptial agreements with illegal provisions. Doing so can result in the whole document being declared invalid.
Child custody and support are mentioned
You cannot make child custody, visitation, or support arrangements in a prenuptial agreement. These are issues of public policy, and the court retains the ability to decide how much support and what custody and visitation arrangement is in the child’s best interests. Any provisions that address these matters will not be upheld.
Waiving right to spousal support
New York courts are often called upon to strike down this provision, and they usually follow suit. In the 2018 case Taha v Elzemity, the Appeals Court declared a prenuptial agreement unconscionable after it provided a stay-at-home mother with a lump sum payment of $20,000 while her husband was a physician earning $300,000 per year.
Non-financial issues are addressed
Prenups cannot be used to agree on personal arrangements, such as whether you take your spouse’s last name or where you will spend the December holidays. According to Forbes, prenups have even been used to:
- Prohibit weight gain
- Require that spouse maintain a certain hair color
- Indicate frequency of sexual relations
They are meant to address financial issues, such as your retention of the family business or preservation of assets for children from another relationship. While personal provisions won’t necessarily invalidate the entire agreement, the court won’t uphold them either.
Contact a New York family law attorney
While prenups requests are sometimes treated as signs that you have doubts about the marriage, putting one together requires both parties to be completely honest about their assets and financial goals. Money arguments are leading causes of marital breakdown, and getting on the same page at the start can result in a stronger and more communicative relationship.
If you are planning to marry soon, then you and your fiance can work with a New York family law attorney to develop a prenuptial agreement that’s fair, relevant, and freely entered into. Most law offices are having virtual consultations during the lockdown, so you can start your plans for the future at any time. Jayson Lutzky is a Bronx, New York divorce and family law attorney. He offers free consultations for clients interested in prenuptial and post-nuptial agreements. Call Mr. Lutzky’s office at 718-514-6619 to set up an appointment.