What’s Not Allowed in a Prenuptial Agreement?

Prenuptial agreements are valuable tools that can provide clarity and structure while potentially reducing conflicts. However, it’s important for couples considering a prenuptial agreement to understand the legal boundaries that govern them.

Prenups are legally binding contracts between two individuals who intend to marry. This agreement outlines how various aspects of property division and support will be handled in the event of divorce or the death of one spouse.

What can’t be included in a New York prenuptial agreement?

In New York, prenuptial agreements must be in writing and signed by both future spouses before a notary public. While prenuptial agreements offer substantial flexibility, there are certain limitations to what they can cover. Most people use

In New York, a prenup cannot resolve:

• Criminal acts: An agreement cannot compel either spouse to commit a crime or prevent them from prosecuting a crime, such as domestic violence.
• Child custody and support: Prenuptial agreements cannot definitively resolve issues related to child custody, education, support and care. However, parents can address these matters in the agreement, and a family court judge may consider them—but there’s no guarantee the judge will agree the provisions are in a child’s best interest. Additionally, you cannot pre determine child support or necessarily “cap” same.

To be valid, a prenuptial agreement should be executed before the marriage ceremony. However, an agreement made before a religious ceremony intended to be a marriage remains valid even if the marriage is not legally binding.  If you do not execute it prior to marriage, you can execute what is called a postnuptial agreement which is signed after the marriage.

A prenuptial agreement is presumed to be valid unless one spouse can prove one of the following by way of example:

• Duress during signing.
• Lack of mental competence or being under the age of 18.
• Fraudulent actions by one spouse.
• Unconscionability (severely unfair terms) at the time of signing
• Undue influence.

Finally, if one spouse chooses to disclose assets and misrepresents their financial condition, the court may set aside all or a portion of the agreement.

Contact the trusted divorce and custody lawyers at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP today to learn more about prenups.