Gone are the days where couples shied away from discussing their financial matters before they got married-given today's financial climate, college debts and self-entrepreneurship, people are more and more interested in separating their finances from their spouse's. This is perhaps why the use of prenuptial agreements is on the rise; the practicality of the matter has begun to outweigh the emotional.
Given the increasing trend of prenups, it may come as a surprise to many that New York laws are relatively vague on the subject. All that is stated is that a contract that has been made between people contemplating marriage remains in force after the marriage takes place. This means that the law recognizes prenuptial agreements and, in doing so, takes property division decisions away from the state and into the hands of the couple. The agreement, if valid, will take precedence over the state law.
This means the validity of the agreement is of the utmost importance and, without anything clearly included in the law, how are New York residents to know what constitutes a valid prenup? Since it is essentially a contract, similar principles apply. The prenuptial agreement must be written and executed without any coercion. That means each party must voluntarily consent to enter into the agreement.
If coercion is found, the agreement will not be enforced. In order to be entered into willingly, each party must provide full disclosure of their assets. If one party undervalues or hides their assets, the court may decide to throw out the agreement since it was fraudulently entered into.
It is also important to understand the provisions within the agreement and ensure that they are not ridiculous or lopsided. Since a prenup has important financial implications at the end of a marriage, it may be beneficial to consult an experienced divorce attorney to understand the provisions and to ensure a balanced agreement is set out.