We see many Long Island couples for whom the words “prenuptial agreement” make them squirm. It is our firm belief, however, that for those same couples, a prenuptial agreement is one of the smartest decisions they could make. Prenuptial agreements involve a less negative connotation when couples understand the concept better.
What is a Prenuptial Agreement?
In its most basic sense, a prenuptial agreement is an attempt prior to marriage to arrange consequences of marriage and/or its dissolution. On Long Island, prenuptial agreements are governed by New York State Domestic Relations Law § 236B(3). For prenuptial agreements, there is the same presumption of legality as other contracts. In order to be valid, the agreement must be in writing, signed by the parties, and acknowledged or proven in the manner required for a deed to be recorded.
Who Should have a Prenuptial Agreement?
Many people view prenuptial agreements as a contract between wealthy people, couples with a large age gap between them, or as a jinx on their future marriage. However, more couples are entering into these agreements than ever before. Since the 1970s the number of prenuptial agreements has tripled. With the prevalence of divorce and the increasing frequency of remarriage, this growth rate makes sense. Additionally, it is increasingly common for women to bring their own tangible assets into the marriage, further adding to the increase in prenuptial agreements.
Wealthier couples are prime candidates for prenuptial agreements, however, this only represents one small category of people who should consider protecting themselves before entering a marriage. Couples in which one or more parties have been previously divorced are also good candidates for a prenuptial agreement. Owners of their own business or couples with premarital assets that they want to protect should also consider a prenuptial agreement.
What is Included in a Prenuptial Agreement?
A Prenuptial agreement may include:
- A contract to make a testamentary provision, or, a waiver of such a right;
- A provision for the ownership, division or distribution of separate and marital property;
- A provision for the amount and duration of maintenance;
- A provision for the custody, care, education and maintenance of any child of the parties.
Changing the grounds for a divorce is considered a matter outside the scope of a prenuptial agreement. Additionally, General Obligations Law states that a party cannot relieve his or her spouse from liability to support the other if that spouse is likely to become a public charge.
Enforceability of Prenuptial Agreements
In Long Island, New York, courts look to procedural and substantive fairness when determining the enforceability of prenuptial agreements. Procedural fairness ensures that there is full financial disclosure and both parties have independent legal counsel. Substantive fairness ensures that the agreement was not reached through fraud or undue influence, which the court has said does not include the threat to call off the marriage. Substantive fairness also ensures agreements aren’t procured by duress, overreaching, such as willfully concealing assets, or unconscionability. New York Courts have defined unconscionability as an agreement which no person in his or her senses would make, and no honest and fair person would accept. Additionally, prenuptial agreements must also contain terms that are reasonable and fair at the execution.
Have Questions about Prenuptial Agreements on Long Island? Contact Us
If you have questions about, or are considering entering into a prenuptial agreement, contact one of our experienced Long Island Divorce and Family Law attorneys for a free consultation at 631-923-1910.
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