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Avoiding Uncertainty: A Prenuptial Agreement Allows New York Couples to Create Their Own Roadmap, and Thereby Avoid the Pitfalls and Risks Associated With NY's Notoriously Ambiguous Domestic Relations Law (DRL)

By:     Marc A. Rapaport
          July 15, 2011

Because New York courts have adopted an unusually broad definition of what constitutes a marital asset, a prenuptial agreement is particularly important for couples who may choose to reside here. For example, New York courts routinely treat professional licenses, educational degrees, and enhanced earning capacity as marital assets to be shared and divided. A professionally prepared prenuptial agreement enables a couple to set forth, based on their priorities, the items that they wish to treat as marital property, and the manner in which such property shall be divided in the event of divorce.

Under New York law, a couple may enter into a prenuptial agreement that designates, as separate property, assets that may otherwise be considered marital. However, it is essential that a premarital agreement be drafted carefully, with the parties' intentions and understandings set forth in a precise manner. It is particularly important for the parties to unambiguously state that they intend to override NY's general rules of equitable distribution. New York's Appellate Division has emphasized that if parties which to deviate from the rules of equitable distribution, their prenuptial agreement must memorialize their intention to define marital property, or provide for distribution of such property, in a manner that differs from the approach that would be used in the absence of an agreement:

[T]he intent to override the rules of equitable distribution - whether by express waiver, or by specifically designating as separate property assets that would otherwise be considered marital property under New York law - must be clearly evidenced by the writing. Strong v. Dubin, 75 A.D.3d 66 (1st Dept. 2010) (quoting Tietjen v Tietjen, 48 AD3d 789, 791 [2008]).

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