If you plan on asking your future spouse to sign a prenuptial agreement, or you’re being asked to sign one, there’s a lot to think about. A prenup, if properly drawn, can work well in managing a couple’s finances during marriage and in controlling what happens to assets and debts upon divorce. But prenups have their limits in terms of what property they can cover and what provisions are legally enforceable.

Knowing what a prenuptial agreement can and cannot do is essential to preparing one that is valid under New York law and effective in carrying out your objectives. Here are some of the potential problems with prenups and how to address them:

• Flawed formation — A prenup obtained through deception, coercion or duress is not enforceable. If one spouse fails to fully disclose their assets, debts or other aspects of their finances, the other party could legitimately claim to have been tricked into giving up marital rights. Similarly, one spouse can’t put the other under unreasonable pressure to review and sign the prenup. The agreement should be the product of full and candid negotiations, with each side having their own attorney.
• Unconscionability — Often, a prenup is sought by a spouse who has substantial assets that he or she wants to shield from the other. While a prenup can grant more economic benefits to one spouse, its terms cannot be so one-sided as to be unfair or oppressive, which the law condemns as “unconscionable.” The spouses, assisted by counsel, need to negotiate fair terms for the less affluent spouse’s share of the wealth during marriage and upon divorce.
• Unspecified property rights — A prenup that is vague in its terms is difficult to enforce. General descriptions of assets and income sources covered may not be sufficient to overcome New York’s law requiring equitable distribution of property upon divorce. Similarly, vagueness about the level and duration of spousal support may cause a provision to fail. A well-drafted prenuptial agreement carefully identifies the assets and support payments to which a spouse is entitled.
• Lifestyle clauses — Prenup clauses that place unreasonable restrictions on a spouse’s behavior are unenforceable. For example, the agreement can’t limit a spouse’s career, social life or other outside activities, and it can’t require staying below a certain weight, keeping up an exercise regimen or engaging in a set frequency of sexual relations. A prenup can, however, require a spouse to contribute to running and maintaining the household.
• Provisions affecting children — Parents cannot use a prenup to make decisions on child support, custody or visitation. Any such provisions will be stricken from the agreement. However, a prenup can protect the financial interests of either spouse’s children from prior relationships.

Bombardo Law Office, P.C. helps Central New York clients craft legally enforceable prenuptial agreements that are tailored to their needs. To schedule a free consultation at my Syracuse office, call 315-800-4002 or contact me online.