Agreements before the Marriage: Prenuptial or Antenuptial or Premarital Agreements
Couples in New York can agree to resolve in advance, prior to marriage, many issues that would surface should a marriage fail or one of the couple dies. Such agreements may be particularly useful in the case of second marriages where children of the first marriage remain.
Prenuptial agreements (sometimes called “prenups“) are allowed by statute in New York, concretely Domestic Relations Law section 236B. To be valid and enforceable, premarital agreements require that certain formalities be met. Consistent with DRL s. 236, such an agreement must:
- be in writing
- subscribed by the parties, and
- acknowledged or proven in the manner required to entitle a deed to be recorded.
A premarital agreement can cover a host of topics, including:
- a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;
- provision for the ownership, division or distribution of separate and marital property;
- provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship (subject to some limitation); and
- provision for the custody, care, education and maintenance of any child of the parties (subject to some limitations).
A valid prenup is a contract between consenting adults. While full financial disclosure is not necessarily required, failure to disclose one’s finances in full can potentially lead to the invalidation of a prenup. Said another way, a premarital agreement that arises after candid and full disclosure may stand less chance of being voided.
Mediation and premarital agreements
A mediated prenuptial agreement, where the mediator helps the couple to reach decisions on these or other issues, may help the couple to proceed with a marriage knowing that they have reached terms on such issues as division of property and care and support for children.