New York Prenuptial Agreement – Template & Laws

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Updated May 13, 2022

A New York prenuptial agreement enables future spouses to control how their assets will be split in the event of a divorce or legal separation. As its name suggests, the prenuptial agreement, or “premarital agreement,” is drafted by the couple prior to marriage. The parties will disclose their finances and property to each other before creating terms for the division of their assets. A properly executed prenuptial will reduce the financial and emotional burden imposed upon the couple by eliminating the state’s ability to divide the assets and property as they see fit.

Signing Requirements (DRL 236B(3)) – The signatures of both parties and an acknowledgment by a notarial officer or one (1) or more witnesses are required.

Laws

CaseWerther v Werther 2005 NY Slip Op 51543(U)

Child Support

Without question, a provision in an agreement eliminating a party’s child support obligation is void as against public policy.

Lack of Independent Counsel

While lack of independent counsel is a factor to be considered in determining whether the agreement should be set-aside, it is not, without some extrinsic evidence of unconscionability, duress or fraud, sufficient in and of itself to overturn the agreement.

Case Colello v. Colello, 9 A.D.3d 855, 780 N.Y.S.2d 450 (2004)

Unconscionability

An unconscionable bargain is “one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other.”

Case Cron v. Cron, 8 A.D.3d 186;780 N.Y.S.2d 121 (1st Dept. 2004)

Fraud

Defendant, in seeking rescission of the parties’ prenuptial agreement, failed to carry her burden to demonstrate that the agreement was the product of fraud, duress or other inequitable conduct … Indeed, the record demonstrates that defendant was aware of plaintiff’s earnings and substantial financial assets but nonetheless chose to sign the agreement, notwithstanding the contrary advice of her attorney, who represented her interests in a highly competent manner … While the agreement’s child support provisions are concededly invalid, its remaining provisions, which are expressly severable, are not therefore subject to rescission.

Five Indispensable Requirements for a Valid Prenuptial Agreement

Source Unconscionable Matrimonial Agreements (Paul Bennett Memow and Kimberly S. Tsolrssru)

1. There must be complete financial disclosure by each party to the other. See ln re Greiff, 92 N.Y.2d 341, 680 N.Y.S.2d 894 (1998).

2. Each party must be separately represented by counsel of his or her choosing and without any suggestion by the other as to the choice. However, the failure of one party to be separately represented is not per se fatal if the independent selection is knowingly waived. See Levine v. Levine, 56 N.Y.2d 42, 451 N.Y.S.2d 26 (1982).

3. Duress and emotional anxiety can’t be a factor in the acceptance of the agreement.

4. The document must be acknowledged in the same form as is required for a deed to be recorded. Malisoff v. Dori, 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997).

5. The agreement must comply with the DRL and the GOL.

Video – Making a Prenup in New York