A New York prenuptial agreement is a document that allows engaged couples to determine the division of their assets in case of divorce or legal separation. Known also as a “premarital agreement,” it is prepared before the marriage.
The couple must fully disclose their financial and property details to each other before deciding on how their assets will be split. By executing a valid prenuptial agreement, couples can minimize both financial and emotional stress by preventing the state from arbitrarily dividing their assets and property.
Legal Considerations
Laws:
- GOB § 3-303 – Contracts in contemplation of marriage
- DRL 236B(3) – Special controlling provisions; prior actions or proceedings; new actions or proceedings
Signing Requirements: The document must be signed by both parties and validated by a notary or any person authorized to solemnize marriages under state law (DRL 236B(3)).
Dividing Property: New York courts divide marital property equitably, which means fairly based on each case’s circumstances, not necessarily equally, with no legal mandate for a 50/50 split.
What Does a New York Prenuptial Agreement Cover?
Prenuptial agreements in New York are designed to preemptively settle matters typically resolved during divorce proceedings. These agreements commonly include provisions for:
- Individual and joint property rights
- Asset and debt distribution in case of marriage dissolution, death, or divorce
- Rights related to property transactions (buying, selling, leasing, etc.)
- Management and entitlements in family businesses
- Alimony specifics, including amount and duration
- Rights to life insurance death benefits
- Governing state law for the agreement
- Any other mutually agreed-upon matters
New York allows for broad flexibility in drafting prenups, but they cannot mandate criminal activities or inhibit legal action for crimes like domestic violence. Unlike in many states, New York prenups can include certain child-related issues.
Can a Prenuptial Agreement Resolve Child Custody and Child Support in New York?
Yes, premarital agreements in New York can provide for child custody as long as the provisions are consistent in all respects with state law.
For instance, a New York case involved a premarital agreement on the children’s religious upbringing. Post-divorce, a request to alter this agreement for the child’s educational benefit led the court to override the original terms, emphasizing the child’s best interests.
Is New York a Community-Property State?
No, New York does not adhere to the community property system. Rather, it employs the principle of “equitable distribution” during divorces. This approach allows judges to allocate a couple’s assets and liabilities in a manner deemed fair for the specific details of their situation. It’s important to note that fairness here does not automatically imply an equal division, as is typically aimed for in community property states.
Marital Property vs. Separate Property
Determining which assets are “marital” and which are “separate” is crucial in divorce, as marital property and debts are divided between spouses, while separate property remains with its original owner.
What Counts as Separate Property in New York?
In New York, separate property includes:
- Assets acquired before marriage
- Inheritances or gifts from third parties
- Personal injury compensation
- Property designated as separate in a written agreement
- Property bought with separate assets
- Value increases of separate property not due to the spouse’s effort
Example: If a house owned before marriage appreciates in value due to market changes alone, that increase is separate property. However, if the appreciation is due to the other spouse’s contributions, such as renovation, that part becomes marital property (§ 236(B)(1)(d)).
What’s Considered Marital Property in New York?
Marital property encompasses all assets acquired by either or both spouses during the marriage, barring exceptions noted above. Ownership is irrelevant; what matters is the acquisition during the marriage up to filing for divorce or signing a separation agreement (§ 236(B)(1)(c)).
