USA – NEW YORK Law and Practice Contributed by: Gretchen Beall Schumann and Lindsay R Pfeffer, Rabin Schumann and Partners LLP
Domestic Relations Law Section 236 (B) pro - vides two methods for determining temporary and post-divorce maintenance, with a list of fac - tors to be considered by a court for each. New York courts are empowered by statute (DRL § 236 (B)) to award post-divorce maintenance. There are also durational guidelines for mainte - nance provided by statute, as follows: • in marriages lasting 0 to 15 years, payments should last 15% to 30% of the marriage’s length; • in marriages lasting 15 to 20 years, payments should last 30% to 40% of the marriage’s length; and • in marriages lasting over 20 years, payments should last 35% to 50% of the marriage’s length. 2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements are rec - ognised in New York State. New York Domes - tic Relations Law Section 236 (B) (3) explicitly provides: “An agreement of the parties made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the par - ties and acknowledged or proven in the man - ner required to entitle a deed to be recorded.” Foreign agreements are largely enforced, pro - vided that the necessary formalities are met for the agreement to be valid and enforceable. An agreement’s terms must not violate New York’s public policy; there are limited other bases that might render an agreement, or certain of its terms, unenforceable (eg, the agreement was procured by fraud, duress, coercion or contains unconscionable provisions).
New York courts will enforce the terms of pre - nuptial and postnuptial agreements so long as they are made in conformance with standards for contracts, meaning that the agreement can - not be the product of fraud, duress, or coercion, and cannot be unconscionable or violate public policy. A New York marital agreement must be executed by the parties and acknowledged (as is required for a deed to be recorded, per the New York Real Property Law). Otherwise, a court will not be authorised to enforce the agreement. Child support and child custody terms are usually not included in prenuptial and postnuptial agree - ments. 2.6 Cohabitation There are no financial rights that arise solely from cohabitation. Certain civil claims may be pos - sible if the couple owns jointly titled property, or they have entered into a cohabitation agree - ment. A couple may also enter into a domestic partnership, but the financial rights associated with a domestic partnership are limited. In New York State cohabitants do not acquire any rights by virtue of length of cohabitation or children, etc. New York State does not recog - nise common law marriages, and the length of cohabitation does not generate rights between the couple, regardless of whether there are chil - dren. The laws regarding child custody apply to both children of a married couple and children of unmarried couples. 2.7 Enforcement A party may seek an order for numerous rem - edies, including, but not limited to, specific performance, contempt and a money judgment for unpaid distribution. Additionally, the court
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