Jack and Jillian agree to sign a prenuptial agreement with the following provision: Jillian promises not to bear Jack’s children during the marriage, and if Jillian does become pregnant, she agrees to forfeit all rights to spousal or child support. Is the promise enforceable in New York?

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In New York, the rights of children to support may not be adversely impacted by a premarital agreement. Like almost every other state in the country, in New York, an agreement that abrogates, or even limits, the obligation of a parent to support his minor children during or after the marriage is against public policy and invalid. Furthermore, although not necessarily invalid on its face, Courts in New York generally refuse nonmonetary provision dealing with division of household duties, frequency of sexual relations, childbearing, or activities related to raising children.

In contrast to these examples of invalid or unenforceable provisions in a premarital agreement, parties may alter the ownership and powers of management of property during marriage and the expectations of creditors with respect to debts of the spouses and access to what would otherwise be marital or community property.  Even during the divorce process, parties may stipulate that certain non-marital assets are marital property or vice-versa.

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