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Common Prenup Pitfalls and How to Avoid Them

Prenuptial agreements, AKA “prenups,” are certainly not the most romantic considerations when planning to tie the knot, and people may feel uncomfortable discussing their desire for one with their future spouse. However, prenups can be a benefit to many couples regardless of their financial situation, as they serve as a written expression of how the couple intends to structure the economic aspect of their union. With a prenup, couples can rest assured that they understand what may or may not be considered marital property, rather than leaving a potential future division up to the whims of their state legislature and the individual judge assigned to their divorce.

Once a couple decides to enter into a prenuptial agreement, they must take care to ensure that the agreement is valid and binding. Each state has its own rules for prenuptial agreements, and couples should understand the requirements for these agreements to be valid before signing since they can have long-term effects on their lives. Additionally, should your agreement fail to meet your state’s requirements, the prenuptial agreement could be overturned by the courts, destroying the plans you had put in place prior to your marriage.

Below are a few common pitfalls that could invalidate a prenuptial agreement in New York and some options to avoid them.

Your Prenuptial Agreement Might be Overturned if

…the agreement is fraudulent.

While fraud is a vague term and can mean a variety of different things, in the case of marital agreements, it generally relates to the misrepresentation of finances. When establishing a prenuptial agreement in New York, spouses are not obliged to disclose their finances to each other; however, in order to ensure the validity of the prenup, parties should fully disclose their finances and attach a schedule of their assets (and debts, if applicable) to the prenup. Including a list of each person’s assets ensures that neither spouse can claim they were unaware of a particular asset.

…the agreement was signed under pressure or duress.

If a spouse can sufficiently prove that they faced undue pressure or were coerced into signing the agreement, it could be invalidated. In the case of prenups, a common fact used to support a claim of duress is the short time period between signing the prenup and getting married. For this reason, prenups should not be signed the day of or on the eve of the wedding ceremony, and ideally the prenup would be signed several weeks in advance.

…there are technical errors in the agreement.

As mentioned prior, there are many different rules and protocols for filing prenuptial agreements, and failure to follow the established protocols could lead to the dismissal of an otherwise sound prenuptial agreement. Some common examples could include not having the document notarized or missing the proper parties’ signatures. Having an attorney draft the agreement will help to ensure that such errors are avoided.

…the agreement is unconscionable.

Another way your prenuptial agreement could be overturned is if you or a spouse could prove that the demands in the agreement had terms that no reasonable person would agree to. In other words, if the terms are so egregious or one-sided as to be considered unconscionable, the courts may choose to overturn the agreement. However, adults are generally free to contract with one another, and courts must weigh this freedom against the overall fairness of the prenup. Having both sides represented by an attorney will at least allow the court to view a claim of unconscionability with greater scrutiny.

…a spouse wasn’t mentally competent enough to sign the contract.

With mental health becoming much more understood in recent years, many are curious as to whether or not issues surrounding depression, bipolar disorder, or addiction could affect their case. In the context of challenging a prenup, a spouse could link their mental health to an inability to enter into a contract, which would void the agreement. However, the mere fact that an individual may have a diagnosed mental disorder is not enough to overturn an otherwise validly executed agreement. The key consideration here is whether the individual’s disorder or a prescription drug taken to alleviate the effects of a disorder impaired their ability to contract at the time the agreement was signed.

…a spouse wasn’t of age.

It is a rare case, but minors are not allowed to sign prenuptial agreements in New York. Prenuptial agreements are contracts, and they are void if one party is under the age of 18 at the time of execution. Therefore, if a spouse was not 18 at the time of signing the prenuptial agreement, it will not be considered valid. This is true even if the minor reaches the age of 18 prior to entering into the marriage, which in such a case would make the marriage legitimate but the prenup void.

…it was not in writing.

Prenuptial agreements must be put into writing and signed with the same formality as required for a deed to be recorded in New York, which is to say they must be duly acknowledged. Verbal agreements are not binding, nor are any modifications to the prenup, unless such modifications are also entered into with the same formality.

…it was signed after getting married

Lastly, prenuptial agreements must be duly executed before getting married—hence the “pre”-prefix. However, if you are already married and are looking for the same legal protections offered by a prenup, it is possible to achieve this goal by entering into a postnuptial agreement. Spouses who have every intention of remaining married but are interested in structuring their economic union in a manner that deviates from the default laws of New York may consider a postnuptial agreement.

…a spouse did not have proper legal counsel.

As with most contracts, it is always advisable to have separate and independent legal representation to uphold your best interests. While it is not required to have legal counsel when it comes to drafting, negotiating, and/or reviewing a marital agreement such as a prenup, there is a strong public policy in favor of representation due to the important matters addressed within a prenuptial agreement. Furthermore, each person’s legal counsel should be independent counsel of their own choosing so as to avoid a perception of influence. Courts view prenups with greater scrutiny when there is a lack of legal representation, and all of the above factors become magnified by the fact that a person entered into an agreement without the benefit of an attorney. If one or both parties decline to be represented, they do so at the peril of having the prenup overturned at the time of divorce.

Knowing the Requirements for a Valid Prenup in New York

Overall, there are many different ways that your prenuptial agreement could be void, voidable, or otherwise overturned in New York. It is important to keep the above potential pitfalls in mind so that you can best protect your prenuptial agreement and your future.

Michael Liptrot is senior counsel in Tully Rinckey PLLC’s New York City office, where he focuses his practice on family and matrimonial law. For close to a decade, Michael has practiced family law across New York City, including the five boroughs, the lower Hudson Valley area, and New Jersey. Throughout his time practicing, Michael has gained a vast amount of experience in family and matrimonial law, with specific experience in divorce, custody, child support, family offense, neglect/abuse, guardianship, and SIJS (Special Immigrant Juvenile Status) matters. He can be reached at or at (888)-529-4543.

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