Nuptial Agreements for NYC-Based
Queer or Non-Monogamous Families

Nuptial agreements are practical contracts entered into by two people either prior to getting married (prenuptial agreements) or after a wedding (postnuptial agreements).

Whether prenuptial or postnuptial, these agreements are practical arrangements made by two people entering into a marriage that provide for the disposition of cash flow and assets in the event of unforeseen circumstances, like divorce or death of one of the spouses.

By entering into one of these agreements, the couple takes a practical, proactive step in addressing key financial matters.  This can be an empowering process for everyone involved!  A nuptial agreement allows people to eliminate uncertainties and turn their focus and attention to other things, building a strong foundation and providing peace of mind as their life together unfolds.

What Nuptial Agreements Do

A nuptial agreement is a legal document, crafted either before or during the marriage, that determines how cash flow, assets, and debts will be split in the event of divorce or death.

Couples and families in New York look to these agreements to clearly outline the financial expectations between them and can cover issues such as separate property (or property received before a marriage, or during a marriage depending on the terms of the agreement), future spousal support, and division of assets and debts.

The primary purpose of these agreements is to protect the individuals in the couple by spelling out their assets and establishing financial boundaries.  Prenuptial agreements can cover a broad range of issues, including:

• Marital and separate property or assets;

• Individual and shared debts;

• Business assets;

• Inheritance;

• Spousal support in the event of divorce;

• Retirement accounts; and

• Family homes or property

When people are married in New York, the typical law is that everything acquired by either person in the relationship becomes “marital property.”  The meaning of this designation is that, particularly in the event of divorce, all the property gets split relatively equally between the two people, no matter how that property was obtained.

One of the key components of a nuptial agreement is to establish what is “separate property,” or what items are not eligible to be split in the event of divorce.  For example, if one of the spouses inherits a family heirloom or receives a gift meant to be solely for them, that person can keep that property after divorce, and its value does not need to be split between the two people.  As another example, if one spouse is entering a marriage with some personal debt, it prevents the other spouse from having to assume responsibility for that debt.

FAQ:

What is the Difference Between a Prenuptial and Postnuptial Agreement?

Prenuptial agreements and postnuptial agreements are very similar, and both can be binding if entered into in accordance with legal requirements.

In both arrangements, the couple needs to engage in full financial disclosure of cash flow and assets, determine what property is marital and what property is separate, and make plans for how they want these items and other decisions determined in the event of divorce or death.

What Do I Need to Provide in Obtaining a Valid Nuptial Agreement?

Fundamental to establishing a valid and enforceable nuptial agreement is both partners’ willingness to engage in full financial disclosure.

This is a requirement that includes disclosure of all assets, debts/liabilities, income streams, business holdings, bank and credit accounts, and retirement assets.  This requirement fosters trust and ensures the agreement protects both parties.  If this disclosure is incomplete for any reason, it affects whether the prenuptial agreement will be enforced by a court in the event of divorce or separation.

You may also consider providing and discussing with your partner items that apply to your specific situation, such as pet custody, future financial commitments, and any gifts or inheritances you anticipate receiving.

Do I Need a Prenuptial or Postnuptial Agreement if I Don’t Have Many Assets?

Many young people are turning to nuptial agreements even when they don’t have many assets or very high cash flow.

People see this as a practical decision that protects them, because it is impossible to know what may happen during the course of a life.

I Don’t Want to Have an Argument With My Partner.  Are Prenup Agreements Adversarial?

It is common for people to feel nervous about bringing up a prenuptial agreement with a partner.  There is often concern that a partner will believe that the person bringing up the nuptial agreement anticipates that the relationship will end.

This does not have to be the case!  It is simply a truth that for any number of reasons, couples often choose to split up.  A prenuptial agreement protects both parties from the uncertainty that occurs, and it is a practical way to give everyone peace of mind.  Nuptial agreements can also significantly lower costs at the stage of divorce or death, because the couple has already responsibly chosen how these things will be divided, and there is little room for unnecessary quibbling.

A nuptial agreement promotes open and honest communication, trust, and even an amicable separation should anything happen.

Working with attorneys like Lindsey Rubinstein, who are trained in family law and divorce mediation, can help this process go smoothly.  Attorneys not experienced in this area may take to unnecessary fighting over issues that do not concern the couple, or behave in an adversarial nature.  You want an attorney to represent you who understands that you are entering into this arrangement lovingly and with a desire to avoid conflict.

Creating a Binding Prenuptial or Postnuptial Agreement in New York

To be binding and enforceable in the state of New York, nuptial agreements require certain formalities:

• The agreement must be in writing (not verbal);

• The agreement must be signed by both parties; and

• The agreement must be notarized.

The agreement must also be entered into voluntarily, without any evidence of coercion, fraud or dishonesty.  It is extremely advisable that both parties to the agreement review, or have the opportunity to review, the agreement with independent legal counsel.  Finally, the agreement must not be “unconscionable,” or so in favor of one party or against the other party’s interest as to be clearly unfair.

There are certain things a binding nuptial agreement can cover, including:

• How property owned before the marriage will be treated in the event of divorce or death;

• How income, savings, investments, retirement, and real estate acquired during the marriage will be characterized in the event of divorce or death;

• Responsibility for certain debts, such as student loan or credit card debt;

• Obligations to pay spousal support;

• Treatment of personal businesses;

• Treatment of estate and inheritance rights and preserving certain assets for children from prior relationships; and

• Life insurance or retirement account beneficiaries.

Likewise, there are certain things an agreement may not cover, including:

• Disposition of assets or property that are so unfair as to be “unconscionable”;

• Agreements that are the result of fraud, duress, or coercion;

• Agreements to do things that are illegal; and

• Child custody or child support, which are determined at the time of divorce, not in a prior agreement.

Many people also ask if a nuptial agreement can determine spousal support or maintenance in the event of divorce.  Courts are generally uncomfortable with enforcing an agreement that waives any party’s right to maintenance at all.  However, a nuptial agreement can place limitations on this, such as stating that both parties agree that spousal support may only be enforceable after the couple has been married for a certain amount of time.

Prenuptial Mediation vs. Separate Representation

There are typically two distinct ways parties enter into nuptial agreements:

• One of the spouses hires an attorney to consult with them and draft an agreement, which attorney sends the drafted agreement to the other spouse’s attorney (or, in some cases, to the other spouse directly, although this is not recommended); or

• The two spouses together hire a neutral mediator to help them talk through the process, with or without the need for each of the spouses individually to hire a reviewing attorney.

Expand Law can help with either arrangement.  What you choose depends on your goals and comfort level.  Typically when parties are unclear about what might go into an agreement or seek help in figuring out how to communicate about financial issues, they hire a mediator to guide them through this process. 

Hiring a mediator can help establish healthy practices around financial communication early in your marriage, and some couples find it immensely helpful to have laid that groundwork.

Other couples decide that they are able to communicate these issues and just need a friendly and helpful attorney to draft an agreement and calmly negotiate with a reviewing attorney about some of the terms before it is signed and notarized.

Prenuptial Agreements in Blended or Non-Monogamous Families

The law only recognizes a marriage between two people.  If you are in a non-monogamous or polyamorous family, you may worry that loved ones or partners outside the legal framework of your marriage will not be protected in the event of divorce or death.

Working with an experienced and compassionate attorney like Lindsey Rubinstein can help alleviate these concerns.

Nuptial agreements are all about drafting.  In any agreement you make, you can include that you are engaged in non-monogamy and agree that this fact will not be used against anyone in the relationship in the event of divorce, or you can agree to certain arrangements about the disposition of property.  A nuptial agreement in a polyamorous structure can also determine how any marital residence is treated in the event of divorce, considering if there are other adults or nesting partners in the residence and contributing to the household.

One of your priorities may be to use language that, to the extent possible, avoids creating hierarchies in your structure.  While there are some ways that entering into a marriage by definition creates that structure, you have options to minimize the impact of this on your life and relationships.

Expand Law will respect your chosen lifestyle and family and work with you to use language that truly reflects your priorities.  We can also provide reviewing attorney services for any partner who receives a drafted nuptial agreement from the attorney of another partner.