Prenuptial Agreement FAQs - What to Ask Your Attorney

If you're planning to get married, having your attorney draft a prenuptial agreement is a wise decision. The prenuptial agreement will protect both yourself and your soon-to-be spouse. The document will clarify all of your responsibilities to each other, and your rights should your marriage end in divorce. It may seem unhealthy to contemplate the demise of your marriage before you've even entered into it, but a prenuptial agreement can be a healthy way to deepen your trust and respect for each other. 

A prenuptial agreement is not just a boilerplate contract. It is a detailed, very personal document that should be customized to take into account the unique circumstances you and your future spouse are in. Both of you must feel completely comfortable with the agreement, and thus there is a lot of work that must go into it. You likely have many questions about the agreement, what it will contain, and how it is structured. Organize your thoughts by asking your attorney the following questions.

Q: We completely agree about how we will share our assets if we get a divorce. Why do we need a prenup?

Your attorney will likely explain to you why it is imperative to put your agreement in writing, so that there can be no question about what it says and what the details are.

Q: What assets will the agreement divide?

A prenuptial agreement will specify what will be considered separate property (property you each bring into the marriage and property you acquire individually during the marriage in specific ways such as inheritance, gifts, or a personal injury settlement or judgment) under the agreement. This property will not be divided in the divorce. Instead, the agreement will focus on property acquired during the marriage (even if it is held in your individual name or was earned by you alone) and detail how that property will be divided should you divorce.

Q: Does the agreement specify how assets and debts will be divided in detail?

The agreement can be as detailed as you and your future spouse need it to be. The main thrust of the contract is to specify how you will divide marital assets and debts if you do get a divorce. Specific categories can be created, and even specific items can be mentioned. The agreement does not need to divide marital assets and debts in the way the court would if you went to trial for a divorce; however, it must be fair. 

Q: How enforceable is the agreement?

A prenuptial agreement that is signed and executed in accordance with New York's requirements is binding. The court will uphold it unless it is unconscionable, signed under duress, or there was fraud involved in creating or signing the agreement. 

Q: How can I ensure my children from a previous marriage are financially protected?

The agreement can establish how you will handle estate planning (making your children your beneficiary instead of your spouse) and establish inheritances for your children that cannot be changed later. The agreement can also include support amounts that are required for minor children from a previous relationship that must be paid.

Q: Can the agreement ensure family heirlooms are passed down to children?

The agreement can include provisions about the disposition of specific items and how your wills are going to handle them, ensuring that specific items can be left to specific people. 

Q: Can the agreement establish spousal maintenance?

A prenuptial agreement can clearly establish spousal maintenance amounts, which can be conditional based on a variety of factors if you both agree. For example, the agreement can establish a scaling amount that corresponds to the number of years of marriage. Spousal support can also be linked to the number of children in the marriage and a variety of other factors. 

Q: Should the agreement include child custody arrangements?

In New York state, you can include a section about child custody, but the agreement cannot be definitive on this issue. The court will determine child custody at the time of the divorce based on what is in the children’s best interests. 

Q: Should we specify child support payments in the agreement?

Just as with child custody, child support payments in New York must be determined by the court at the time of the divorce to ensure they are in the children’s best interest and meet the state standards requirements. 

Q: Do we include requirements for how we will organize our life together?

Provisions in prenuptial agreements that specify things such as who will take out the trash or who will pay the bills or how many vacations you will take together per year are not enforceable and should not be included. Additionally, requirements regarding sexual performance or maintaining a certain appearance are also not enforceable. If you and your spouse want to work out a cohabitating plan, seeing a therapist is the best way to work through those kinds of decisions and issues. 

Q: Can the agreement cover custody of our pets?

A prenuptial agreement can discuss ownership of pets after a divorce. 

Q: Do I have to tell my future spouse about all of my assets or debts?

Financial disclosure is an important part of creating a prenuptial agreement. You can't make a fair agreement unless you both have the same information. Thus, it is important to make sure you provide complete and accurate information during the negotiation process.

Q: Can we sign the agreement after we get married instead of before?

A prenuptial agreement, by its definition, is one that is signed before you are married. However, it is possible to enter into a postnuptial agreement after you get married.

Q: Can we modify our prenuptial agreement after we sign it?

You can modify your prenuptial agreement by creating another prenuptial agreement that revokes the first one. You can also create a postnuptial agreement after your marriage, which revokes or alters the terms of your prenuptial agreement. You can create as many later agreements as you wish to modify the prenuptial agreement as your financial situation and marriage changes. 

Q: What do I do if my future spouse does not want to sign the agreement?

A prenuptial agreement by its very nature must be agreed to by both parties. If your future spouse does not wish to sign it, you cannot force them to. It's important to note that an agreement signed because the other spouse threatens to cancel the wedding is generally considered to be signed under duress and is not valid. If you disagree on the prenuptial as it is written, you can negotiate until you can get to something you both feel comfortable about, choose not to use a prenuptial agreement, or you can choose not to get married at all.