Prenuptial Agreements New York


A prenuptial agreement in New York is a contract between prospective spouses that specifies their rights and obligations during their upcoming marriage.  Such agreements are drafted in anticipation of the marriage and should be done sufficiently in advance so as to avoid the claim by either party that it was entered into under duress on the eve of marriage.  While some Courts have refused to void such agreements even if one party threatens to cancel the wedding days before it is scheduled to occur, recently one Appellate Court held an agreement signed days before the wedding under threat of cancellation, was not valid.

Unlike separation agreements where the relationship of the parties has already deteriorated, preparing a prenuptial agreement is further complicated by the desire to protect one’s financial and other interests while avoiding antagonizing one’s fiancée.

Prenuptial agreements cover a broad range of topics from protection of premarital assets, including business interests and passive assets, maintenance and spousal support or the denial thereof, use and occupancy of the marital residence, custody and care of unborn children, and child support therefore, as well as rights of inheritance and life insurance upon demise.

New York Courts generally permit parties to plot their own course during the marriage but will nonetheless scrutinize the agreement to make sure it is devoid of overreaching. While normally the burden of proof would be on the party challenging the fairness of a prenuptial agreement, where there is a marked imbalance between the parties leading to the conclusion of “probable” undue and unfair advantage, the burden shifts to the proponent of the prenuptial agreement to show freedom from fraud, deception or undue influence.

While Courts generally enforce such agreements according to their written terms, recently an Appellate Court allowed testimony from the wife that her husband promised to cancel the agreement once a child was born (which he subsequently reneged on) and held the prenuptial agreement to be void.

Consultation with an experienced matrimonial lawyer is critical in the drafting and implementation of a prenuptial agreement that will survive judicial scrutiny.  Similarly if you feel you have been forced into signing a prenuptial agreement or promised it would be cancelled by our fiancée after a certain period of time or after a child is born, you should consult with an experienced matrimonial attorney to consider having the agreement voided so that a divorce court can consider the issues of equitable distribution, spousal maintenance and possession of specific personal and real property, as if the agreement never existed.