Last Updated on: 24th June 2025, 09:30 pm

Prenuptial Agreement Guide: Everything You Need to Know About Prenups

A prenuptial agreement is a contract that stipulates how property and assets will be divided up if the couple divorces. Many people think that they do not need a prenuptial agreement if they are not wealthy. However, it is a good idea for every married couple to get a prenuptial agreement. It doesn’t matter if you have millions in the bank or living check-to-check.

According to recent survey data, 85% of married people have not used a prenup. However, interest in them is growing. You and your future spouse will have to take a complete inventory of the finances. If there are assets and property that you would like to keep separate, then you will have to designate yourself as the owner of the property. You can also include your business assets in the prenup.

What Should You Include in the Prenuptial Agreement?

The prenuptial agreement has to be tailored to meet the needs of you and your future spouse. You will have to consider your social and financial situation. Your prenuptial agreement should designate how the assets and wealth will be split. If there is a family pet, then the prenuptial agreement should say who is going to get custody of the pet.

Your prenuptial agreement also needs to include the following.

• How you will handle business assets
• Marital property and separate property
• Who will get the house
• Who will pay the mortgage, insurance and taxes on the house

The Benefits of Having a Prenuptial Agreement

If you have a prenuptial agreement, then you will be able to keep your own finances separate from your future spouse’s finances. NPR reports that everyone should consider a prenuptial agreement before getting married.

There are many types of property acquired in a marriage that will automatically be included as a part of marital or community estate. However, the prenuptial agreement can determine whether an asset or property will be included in the marital estate, or it will be separate property.

Prenuptial agreements do not include child custody or child support arrangements. However, if you have children from a previous relationship, then you can ensure that they are properly cared for after you pass with a prenuptial agreement. The prenuptial agreement can ensure that your children inherit your assets and property.

If you don’t have a prenuptial agreement, then the state may decide how everything will be divided. Additionally, the prenuptial agreement will stipulate financial responsibilities in a marriage. For example, it will stipulate whether the two of you will have separate accounts or joint accounts. It will also determine whether your spouse will be the beneficiary of your estate plan after you pass away.

The Do’s And Don’ts of Prenuptial Agreements

Do’s

• Consider your career and educational goals
• Consider your savings goals
• Consider your marital roles
• Consider the difference in property division

Don’ts

• Discuss child support or child custody in the prenuptial agreement
• Present the prenuptial agreement to a judge without talking to an attorney first
• Discuss the details of the prenuptial agreement with family members and friends
• Allow your emotions to rule your decisions

Talk to Your Future Spouse

Communication is one of the keys to successfully putting together a prenuptial agreement with your future spouse. According to Axios research, 50% of U.S. adults support the use of prenups, though only about 1 in 5 married couples has one.

You and your spouse need to discuss the terms that should be included in the agreement. Both parties want the same thing. They want to be able to walk away from the marriage without losing their separate property and assets. They also don’t want to be destitute after a divorce.

You and your spouse have to be honest about what you don’t want to lose in a divorce.

Why You Need to Have an Attorney

It is possible for you to come up with a prenuptial agreement on your own. However, it is best for you to hire an attorney to help you. The courts tend to scrutinize prenuptial agreements carefully. They may determine that your prenuptial agreement is null and void.

Your attorney will make sure that your prenuptial agreement can actually be enforced. They will also make sure that it is fair to both parties. Additionally, it is important for both parties to have independent legal advice. You can protect your best interests by hiring an attorney.

Can adultery become an issue if the divorce is overturned?

An overturned divorce is a complicated situation, especially if you’ve moved on with your life and you’re in a relationship with someone new. If you’re with someone new and a previous divorce gets overturned, then adultery could become an issue. Here’s what you need to know if you find yourself in this situation.

Why a Divorce Would Be Overturned

It’s uncommon for a court to overturn a divorce, but there are situations where it can happen. The most likely reason for an overturned divorce is that one party alleges that the correct divorce procedure wasn’t followed, and therefore, the divorce should not be valid.

For example, if your process server couldn’t find your spouse and instead you needed to opt for substitute service, your now ex-spouse could petition to overturn the divorce based on not being served correctly. They may not succeed, but it’s a possibility.

When a divorce is overturned, you revert to being married to your spouse. Either of you can file for divorce at this point.

Fault and No-Fault Divorces

When you get divorced, your two options are a fault divorce and a no-fault divorce. Fault divorces were once the primary type of divorce throughout the United States, but these could be expensive and take a long time to complete. No-fault divorce has become far more common in recent years.

Not every state has fault divorces available anymore, but they all have no-fault divorces. New York was the last state to allow no-fault divorces, and it now has both options available.

With a fault divorce, you’re alleging that the divorce was due to some action on your spouse’s part, such as abandonment or adultery. With a no-fault divorce, there’s no allegation of fault. The most common grounds for no-fault divorce is irreconcilable differences.

Where Adultery Can Come into Play

Herein lies the problem when you’ve moved on with your life, only to have your divorce overturned. Let’s say that you’re dating someone new when your spouse gets the divorce overturned. Since the two of you are now married again, if you continue dating that new person, you are technically committing adultery.

At that point, your spouse could file for divorce and allege that you are at fault because you committed adultery. Although this doesn’t always affect the division of assets in a divorce, there is the possibility that you receive a less favorable agreement, such as a smaller amount of spousal support or no spousal support at all, if you’re found to be at fault.

How to Handle an Overturned Divorce When You’re Dating Someone

Since this is a tricky situation, your best bet is to talk to an experienced divorce lawyer about what you should do. Your lawyer can help you assess the risks of continuing the relationship.

If you didn’t want the divorce overturned, you will need to file for a new divorce and should do so as soon as possible. This will start the process of getting your life back to normal.

When it comes to your new relationship, if you wish to minimize your risk, you should immediately stop communicating with your new partner until after you are divorced again. Many people understandably don’t like hearing this, but it’s the safest option to avoid having a spouse allege that you committed adultery.

Now, this doesn’t mean that a court would find you at fault if you continued the relationship, because the burden of proof for your adultery would be on your spouse. They would need evidence of the relationship to present to the court. You could conceivably continue the relationship with no repercussions. It’s simply a matter of whether your spouse wants you found at fault for the divorce and how far they’re willing to go to collect evidence against you.

Understanding Prenuptial Agreements in Detail

A prenup, or prenuptial agreement, is a legally binding contract that is created before marriage. Prenups usually list the property and debts that belong to each person and specify each person’s property rights in the case of divorce. Creating a prenup agreement offers many benefits and not just for the wealthy. These agreements can be used to clarify finances, avoid problems during a divorce, get protection from a spouse’s debts, or pass property to children from a prior marriage.

Brooklyn prenup agreement lawyers can help you draft a prenuptial agreement that is legally binding and clear. In the case of a divorce, this prenup will likely be scrutinized by the court and must be fair while meeting state requirements.

Why Is a Prenup Important?

Most couples can benefit from a premarital agreement, not just those with significant assets. Statistics show that only 3% of people who have a spouse or are planning on getting married in the near future have a prenuptial agreement.

There are many specific reasons couples choose to draft a prenup with the help of Brooklyn prenup agreement lawyers:

Prenup Requirements in Brooklyn

Every state has its own rules regarding prenuptial agreements. According to the NYC Bar Association, in New York, a prenup is made before marriage and goes into effect as soon as the couple gets married. The agreement must be in writing and both spouses must sign before a notary.

New York is one of just a few states that have not adopted the Uniform Prenuptial Agreement Act. New York law sets forth all requirements for a prenup with basic contract rules that apply. Prenups that meet the above requirements are presumed valid unless one spouse can prove any of the following:

• The agreement defrauded one spouse
• The agreement was severely unfair to one spouse when signed
• One spouse was under 18 or not mentally competent when signed
• One spouse signed under duress
• The agreement wasn’t signed until after the marriage
• One spouse chose to disclose their assets and misrepresented their financial condition

While a Brooklyn prenuptial agreement can resolve certain issues regarding the care, support, and education of children, it cannot resolve child support and custody. A New York judge will make the final decision on these matters. The terms of the prenup will be considered and enforced only if they serve the needs of the child.

How Prenup Agreement Lawyers Can Help

The laws governing prenup agreements in New York are complicated. While the courts typically uphold prenups, there are many cases in which they will overturn all or part of the agreement. This is more likely to happen when the agreement is unfair or fails to follow New York guidelines. If you do not want to invest the time and effort to learn the complex laws governing prenups in New York, it’s best to work with experienced Brooklyn prenup agreement lawyers for help.

Remember that prenup agreements still receive scrutiny by the courts. Depending on the details of your prenup and the finanial health of each spouse, a prenup may even receive very close scrutiny. For an agreement that passes any test in court, it’s a good idea to have independent prenup agreement lawyers — one representing each spouse. This is not required by law, but it ensures that each spouse receives independent advice to make decisions in their best interest.

Preparing for a marriage is often about more than choosing a caterer and wedding colors. There are many good reasons to work with a Brooklyn prenuptials attorney as you plan for your marriage. Taking the time to create an agreement can give you clarity and peace of mind as you plan for the future.

What is a Prenuptial Agreement?

When a couple enters into a binding contract about the terms of their marriage, it’s called a prenuptial agreement. This agreement can address a wide variety of issues that surround a marriage and division of property. When a prenuptial agreement is prepared in compliance with New York law, the courts generally uphold them if the marriage dissolves

What Makes a Prenuptial Agreement Valid?

There are several details that must be in place for a prenuptial agreement to be valid. HelloPrenup’s research shows that 67% of respondents finalized their prenuptial agreement in just 2 or 3 days.

The contract must be reasonable. That is, it shouldn’t favor either party unfairly. While a contract can make certain limitations such as limiting a party’s right to spousal support, the contract can’t be so one sided that it’s unfair to enforce it.

In addition, both parties should have their own attorneys in order to create the prenuptial agreement. That means having an attorney to explain to you what the contract means and how it might play out in the future. Additionally, the agreement must be in writing. Agreements that are oral aren’t enforceable.

Making a Prenuptial Agreement

To make a prenuptial agreement, each side must fully disclose their assets. Only giving the other side full information allows the parties to enter into the agreement voluntarily. If either party withholds information, the entire agreement might be invalid.

An agreement can address many different aspects of real and personal property. The parties can agree that certain pieces of property are separate property. That means that they aren’t part of the marital estate to divide in the event of a divorce.

In addition to making agreements that relate to assets, a contract can also make agreements that relate to debt. If one party enters the marriage with significant debt, the agreement can talk about who keeps that debt in the event of a dissolution of a marriage. This is helpful to give a spouse peace of mind that they don’t have to assume non-secured debt or student loans that their spouse incurs before the marriage.

Other Common Issues in Prenuptials

Spousal support is another common issue to consider as part of a prenuptial agreement. An agreement can limit spousal support, or it can guarantee a certain amount of support. In cases where one party makes career changes for the sake of the marriage, addressing spousal support in the prenuptial agreement can give both parties clear expectations and peace of mind. Some agreements also address a situation where a person brings children from a prior relationship into the household who may require support.

A Brooklyn prenuptial lawyer can also help you make an agreement that discusses disposition of certain assets. If one of the parties expects to receive an inheritance, the parties can agree to keep that inheritance a separate asset. In addition, the parties can agree which person retains certain heirlooms or other items of important property.

Can it Address Child Custody or Child Support?

It’s important to keep in mind that a New York prenuptial agreement can’t talk about child custody or child support. According to LegalZoom, New York law says that the courts should make decisions about what’s in the best interests of the child. In many cases, this doesn’t coincide with the wishes of the parents before the parents even have children. The court says that the best interests of the children are more important than the bargaining rights of the parents.

This includes child support. The parents can’t agree to have a parent pay a child support amount that’s different than what’s appropriate under New York law. The courts don’t allow parents to bargain away their right to support.

Postnuptial Agreement

In addition to prenuptial agreements, our Brooklyn prenuptial lawyers have experience drafting postnuptial agreements. A postnuptial is a contract that the parties enter into after they’re married. The things that the couple can address in a postnuptial agreement are similar to the things that a prenuptial agreement can address. However, it’s extremely important to work with an experienced attorney, because the court looks for coercion or an imbalance of power when they decide whether to uphold the agreement.

Why Get a Postnuptial

Much like in the creation of a prenup, in a postnuptial agreement, both parties need to be completely transparent about all their assets and liabilities. The agreement can deal with the rights and responsibilities of the spouses during the course of the marriage, as well as the division of property and spousal maintenance issues if the couple ever gets divorced.

Changes in financial situations, relationships and roles sometimes occur in a marriage. Here below are a few common scenarios that might prompt a couple to enter a postnuptial agreement.

• One spouse may give up their career to stay home with the children. That spouse may want to be certain their financial interests are protected in case of divorce.
• A couple starts a new business together and they need to discern in writing the differences among business, marital and separate assets.
• One of the spouses suddenly comes into a big inheritance. In most such cases, a court would award the inheritance solely to that spouse if the marriage is dissolved. The couple may wish to distribute the inheritance differently than it would be distributed under New York law or to make it clear which property is part of the inheritance so it is not intermingled with marital assets.
• A spouse amassed significant debt prior to the marriage, and the other one wishes to clarify they are not responsible for it.
• A new situation brought on a loss of trust in the relationship, such as infidelity.

Let’s Work Together

When you’re thinking about an upcoming marriage or you want to create a contract for an existing marriage, we’re experienced attorneys, and we’re here to help. When we work with a client, we help you understand what your options are for preparing a prenuptial agreement. Then, we make sure that you understand what the effects of the agreement might be in the future. Contact us today, and let’s work together to make a plan for you.