New York Prenuptial Agreements

Engaged to be married, or thinking of getting engaged? If you and your spouse-to-be are wondering whether a prenuptial agreement might be worthwhile, why not ask prominent New York prenups lawyer Ellen B. Holtzman? Ellen has more than 30 years' experience in creating New York prenuptial agreements for a wide range of situations. Here, Ellen answers some frequently asked questions. While prenuptial agreements are a valuable tool, Ellen notes there's no one-size-fits-all. Each agreement must be tailored to the prospective couple's specific needs, financial situations, and unique wishes. If you'd like more information about this important area of law or want to schedule a consultation, contact matrimonial attorney Ellen Holtzman and her experienced prenups team.

What exactly is a prenup?
It's a legal agreement — a contract — between you and the person you are engaged to marry. It describes in plain language how the two of you have agreed to handle your finances and divide your property in case of divorce. Ellen says that if it is ever needed, the prenup will benefit both spouses in that it automatically streamlines the property division phase that is a necessary part of divorce. She notes that without a prenup, negotiating the property division phase of a divorce can be time-consuming, contentious, and far more costly. It's called a prenuptial agreement because it is finalized before you are married. Getting it done requires the couple to share a lot of information and agree to a plan they both fully understand, have discussed, and believe will work for them if it is ever needed. Ellen notes that ironing out the details of a prenup will take some time. She says, "There should be plenty of time before the wedding for each of you to review and approve the agreement with your own attorney."

Aren't prenups mainly for the rich and famous?
Not anymore. True, prenups used to be more common for high-asset marriages, where one spouse wants to protect their business or personal wealth. And prenups have always been a smart way to protect an individual's separate property if they have children from a prior marriage. Ellen says, "Many of our prenups are created for situations like these. But over the past ten years, we have also assisted more and more young people who understand the many practical benefits of a prenup. They are able to sit down and discuss their personal and financial goals realistically and make their own plans. Millennials and Gen-Zers seem to prefer the added confidence and control over their finances that having their own agreement can provide."

What if we don't have a prenup?
In New York, without a prenup and failing a settlement you agree on, both of you will be subject to the existing Domestic Relations laws for property division. Ellen believes that anyone getting married will benefit greatly from some familiarity with the Domestic Relations laws before they marry. They are very specific. Under New York's Equitable Distribution laws, a judge — not you — could be making the important decisions about each of your financial futures. The judge's Order may well be different from an agreement you might have worked out together before your marriage. You may feel that you don't have enough assets to warrant getting a prenup now but your financial status could change quite a lot over the next few years. And don't forget about debt. Without a prenup, if one or both of you has credit card debt or tax debt, the other could become responsible for debts they did not incur. A prenup can protect you from having to pay debts that are not yours.

Wait. What does debt have to do with it?
A prenup cannot be written without a full statement of each person's assets and liabilities (debts). In addition to the list of personal property and valuables, bank accounts, investments (if any), retirement funds (if any), and real estate (if any), all debts must also be listed. Your prenup will contain instructions about how your property and your debts should be handled if your marriage ends for any reason. A prenup will also determine how debts you incur together will be handled. As long as it is deemed fair and valid, your prenup gives you and your spouse — not the State of New York — control over how your property and your debts are to be allocated.

All this information goes into the prenup?
Yes. In order to write a valid prenup there must be an accurate and complete disclosure of assets and liabilities on both sides. These actual numbers are attached to the agreement. In New York, the two lawyers involved need to be certain that both sides understand what they are getting and what they are giving up in the prenup. A full disclosure of the assets and liabilities of both parties must be attached to the prenup itself. And if your spouse-to-be lives in another state, or even another country, Ellen has extensive experience in working collaboratively on prenups with attorneys in many other states and countries.

Can a prenup protect my family heirlooms and paintings?
Yes, many prenups include descriptions of art, furniture, and other heirlooms. A prenup often specifies each particular object that will remain the separate property of each spouse. Personal injury awards to one spouse, money or property inherited by one spouse, and gifts to one spouse from a third party during the marriage are not counted as marital property in New York; these facts should be stipulated in your New York prenup as well.

Can pets be included in a prenuptial agreement?
Yes, and they often are. In many prenups, the parties agree to share custody of their pets or agree to arrange a visitation schedule.

What about agreeing in advance about spousal support?
Many prenups do include agreements about spousal support, known in New York as "maintenance." You can decide together whether there will be spousal support and under what circumstances. If you and your prospective spouse agree, your prenup can also specify how much maintenance, and for what period of time.

Can we agree to waive our rights to each other's pensions?
Yes.

What about child custody and support, if we have children together?
Ellen says that issues of child custody and child support must be addressed at the time of the separation or divorce: "Under New York law, the best interests of the child or children must come first, and those interests can only be determined and addressed at the time of the separation or divorce."

What if one of us has children from a prior marriage?
Many prospective couples with children from a prior marriage want to make sure their children inherit their property. Ellen says, "We draft prenups that, if needed, can basically change the default law. Let's say one or both spouses with children from a prior marriage wants to leave most of their assets to their own children, not the second spouse. In New York, the law says that one spouse cannot write another out of a will. However, a prenup can override standard New York State inheritance distribution practices in order to provide financially for your child or children from an earlier marriage."

How long is the typical prenup?
It varies. The average prenup contains a lot of information and often runs about 25 or 30 pages. If there is a business or professional practice involved, the agreement is usually a lot longer. Ellen has noticed a trend over the past few years — prenups are getting longer.

Are prenups affordable?
Ellen Holtzman compares a prenup to a business decision. She says, "Hopefully, you will never need it. But it won't be money wasted. When you consider what a trial or a high-conflict divorce could run, the cost of a prenup is still only a tiny fraction of that amount. If and when they are needed, prenups certainly do pay for themselves many times over."

Besides us, who gets a copy of our prenup?
No one, unless you choose to give it to them. Your signed prenup is your private property and belongs to you. It does not need to be filed with any courts or authorities.

When does our prenup take effect?
Your prenup becomes operative the moment you say, "I do." If, after you signed a prenup, the marriage does not take place, the prenup is null and void.

What if we want to change one or more of the prenup's terms later on? Can we?
Yes, you can. But any waiver or modification will take effect only if the new written agreement states that both of you are agreeing to change the provisions of your original agreement. Any changes that you agree to make later must be made using the same processes, protocols, and formalities as your original document.

Is it true that a prenup can be written to serve other legal functions?
Yes. If you wish, a prenup can be drafted in such a way that it becomes a formal Separation Agreement if you ever decide to separate.

How can we make sure that our prenuptial agreement will stand up in court?
To get the best advice and help with a prenup, choose an experienced attorney who focuses their practice on matrimonial and family law in New York. Be certain that each of your schedules of assets and liabilities are full and complete and attached to the agreement. Ellen says that a less monied party may give up their rights to whatever they want, but they must do so knowingly. Her prenups require the parties to confirm that each of them has reviewed the agreement carefully with their own knowledgeable family law attorney and understand what, if anything, they are giving up. Make sure your agreement is signed well before the marriage; it must not be signed under duress. And be sure that the agreement does not show an extreme imbalance between the more monied and the less monied spouse.

What happens if we move to another state?
Your attorney can draft language that wherever you may live in the future, your agreement will be valid and governed under the laws of New York State as they existed at the time your prenup was signed.

What if we skipped the prenup but now wish we had one?
It's not too late. Ask an experienced family law attorney to help you create a postnuptial agreement. You can reach Ellen Holtzman's office at 845-627-0127.