A typical prenuptial agreement includes a listing of the property each party brings to the marriage. If both you and your spouse keep your own property separate during the marriage, it will not be considered marital property should a divorce occur.
However, if any of this property is later titled in both spouses’ names—such as changing the title on a house that originally belonged to just one spouse—that could make the property marital rather than separate in case of divorce, unless this is clearly spelled out in advance of the actual marriage.
On a separate note, prenuptial agreements may establish what kind of spousal support, if any, one spouse must pay to the other in event of a divorce.
Prenuptial Agreement Invalidation
Keep in mind that for a prenuptial agreement to hold up in court, each party must list all of their assets. If one spouse fails to disclose assets and/or attempts to hide them, New York Domestic Relations Law §236(B)(3) allows the court to find the agreement invalid. The same holds true if the prenuptial agreement is completely unfair to one of the parties.
Neither you nor your spouse must feel pressured to sign the agreement or feel forced to sign without adequate time to consider the consequences, or adequate time to obtain proper legal review and advice. Either situation may result in the agreement being invalidated should you eventually divorce.
What a prenuptial agreement cannot do, however, is establish child custody or support for future children of the marriage. It also cannot eliminate a parent’s obligation to pay such support. As established in NYDRL §76-A, all of these issues are up to a New York Supreme or Family Court Judge to decide at the time of separation or divorce, or incorporated into a written agreement by the parties.
The same attorney cannot handle the negotiation of a prenuptial agreement on behalf of both involved parties. Each party must have their own lawyer representing them in this agreement.