During courtship, a couple may choose to look at some of the more complex issues that arise within the context of a marriage. Some couples may take a premarital course or counseling to prepare for their life together. Some States, like Florida, have enacted laws that provide a discount on the marriage license fee for couples who elect to take a four-hour premarital preparation course. Other States have followed suit. And while these laudable efforts encourage awareness of issues that traditionally bring stress into the marriage relationship, premarital counseling does not create any contractual obligations between the parties. A prenuptial agreement, on the other hand, defines the terms under which the couple will live together during the marriage. It can also spell out terms should the couple separate or divorce. This is particularly important if the parties have children from prior relationships, or one party has substantially more assets or income than the other.
New York’s Domestic Relations Law (DRL) 236[B](3) allows “provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.” We will now deconstruct the language of this statute to see how each section applies to the drafting of a valid prenuptial agreement.
DRL 236-B(6) sets out the statutory provision for spousal maintenance in New York. “In determining the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.”
Each of these eleven points can become the subject of a term in a prenuptial agreement. However, the statutes makes clear that any such agreement regarding spousal maintenance must not run counter to the provisions of 5-311 of the General Obligations Law:
§ 5-311. Certain agreements between husband and wife void. Except as provided in section two hundred thirty-six of the domestic relations law, a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge. An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds of divorce.
New York requires grounds for a divorce; it is not a no-fault state. Also, New York does not recognize irreconciable differences as grounds for divorce. A couple may obtain a divorce in New York only on the basis of the following grounds (Domestic Relations Law §170)
Cruel and inhuman treatment (Domestic Relations Law §170.1)
Abandonment for a continuous period of one year or more (DRL §170.2)
Imprisonment for more than three years subsequent to the marriage (DRL §170.3)
Adultery (DRL §170.4)
Conversion of a separation judgment (DRL §170.5)
Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)
The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce (DRL §170.7).
Therefore, a couple may not contract to separate or divorce in a prenuptial agreement, or to contract to procure grounds for a divorce. Nor may a couple stipulate terms in a prenuptial agreement that would render one party a public charge of the state in the event of a divorce.
What permitted provisions might a couple place in a prenuptial agreement? Some health -conscious couples may want to include provisions about smoking or weight-gain. But such provisions are not enforceable. But provisions in a prenuptial agreement about the continuation of health coverage should the couple divorce can be enforceable. A prenuptial agreement could also stipulate that any transfer of property in exchange for a release of a substantive claim on the other party’s estate occur after the wedding in order to mitigate adverse income tax and gift tax consequences.
What makes a prenuptial agreement unconscionable? In Schultz v. Schultz (2009 NY Slip Op 00199 [58 AD3d 616]), the Appellate Division, Second Department defined unconscionable agreement as “one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. However, an agreement is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided’ and simply alleging an unequal division of assets is not sufficient to establish unconscionability.”
Therefore, within the scope of the statute, there is room for a couple to define the terms of their marriage, terms that will provide for harmony and for fairness during the course of their life together.
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