What Cannot Be Included in a Prenuptial Agreement?

Prenuptial agreements can significantly help protect assets and create a roadmap in the event of a divorce in New York. Spouses of all ages and financial backgrounds can benefit greatly from these premarital agreements. 

If you’re interested in creating a prenuptial agreement prior to your marriage, you may wonder what can and cannot be included in this type of agreement. Take a closer look at what these agreements involve in New York.

What is a prenuptial agreement?

A prenuptial agreement, also simply referred to as a prenup, is a contract between future spouses entered into prior to marriage. These agreements greatly assist in the event of divorce or death, detailing financial matters and responsibilities. 

To create a premarital agreement, both spouses must make financial disclosures. Not only is a prenup advantageous in case of death or divorce, but it also allows both parties to fully comprehend one another’s financial status before getting married, allowing for better planning. 

Every state has certain requirements to ensure prenuptial agreements are valid and enforceable. In New York, the document must be:

• In writing
• Signed by both parties
• Notarized and acknowledged

Additionally, neither party can enter into the agreement under duress, coercion, or intimidation. This could result in an invalid contract. 

Parties must also have a chance to confer with legal counsel to keep the agreement equitable for both spouses. A skilled family law attorney can provide guidance to help ensure your prenuptial agreement is valid and legally binding.  

What You Can and Can’t Include in a Prenuptial Agreement

Like other types of legally binding contracts, there are certain details you can and cannot include in your prenup agreement. 

What to Include

Prenuptial agreements allow both parties to make full financial disclosures and plan for the future. This means that, in your prenup, you can:

• Make distinctions concerning separate versus marital assets and debts
• Determine how premarital debts will be paid
• Make provisions for either spouse’s children from previous relationships
• Establish whether either party will receive spousal support in a divorce
• Decide custody of pets after divorce
• Include descriptions of responsibilities for each spouse, such as management of household expenses and savings contributions

These and other details can help make things much easier and clearer if you and your spouse divorce or if either spouse passes away. 

What Not to Include

Knowing what to keep out of your contract is equally as important when drafting your prenuptial agreement. To make sure your contract is enforceable, only include acceptable terms, as including unacceptable terms could negatively impact the validity of your agreement overall. 

Some of the items you cannot include in your prenup include:

• Provisions detailing anything against the law
• Waivers of rights to alimony in a divorce
• Any terms encouraging or incentivizing divorce
• Personal details requiring spouses to do anything non-financial, like lose weight or quit their job

Additionally, in many states, spouses are not allowed to include details concerning child custody, visitation, or support. New York does allow these provisions, however, and courts will scrutinize the prenuptial agreement to ensure the terms fall in line with the children’s best interests. 

It’s not always easy to know when a clause is not enforceable. That is why seeking guidance from a seasoned family law attorney is critical to ensuring you don’t unintentionally invalidate your prenuptial agreement.

Create Your Prenup With the Help of a Family Law Attorney

When you create your prenuptial agreement, you want to make sure it is well-crafted and follows state law to guarantee validity. The knowledgeable family law team at Aiello & DiFalco LLP can help you draft a prenup that protects your future and your interests. We proudly serve clients throughout Garden City and Brooklyn, NY. Contact us today to schedule your consultation and begin working on your agreement.