Divorce & Planning
Are Prenuptial Agreements Enforceable in New York?
Prenuptial agreements — contracts signed before marriage that address financial rights in the event of divorce — are fully enforceable in New York when properly executed. But not every prenup holds up in court. Understanding what makes a prenup valid — and what can get it thrown out — is essential whether you are considering signing one or challenging one.
What Is a Prenuptial Agreement?
A prenuptial agreement (also called a premarital agreement or "prenup") is a written contract entered into by two people before they marry. It typically addresses what will happen to property and finances if the marriage ends in divorce, separation, or death. Prenups can also be entered into during marriage — in that case they are called postnuptial agreements and are subject to slightly different rules.
What Can a Prenup Cover in New York?
Under New York Domestic Relations Law § 236(B)(3), prenuptial agreements can address:
- Which property remains separate and which becomes marital
- How property will be divided in the event of divorce
- Spousal maintenance (amount, duration, or waiver)
- Rights to specific assets (a family business, an inheritance, a home)
- Financial responsibilities during the marriage
- Estate planning and inheritance rights
What a Prenup Cannot Cover
Certain matters are off-limits for prenuptial agreements in New York:
- Child custody and child support. Courts will not enforce prenup provisions that predetermine custody arrangements or waive child support. The child's best interests must be determined at the time of divorce, not in advance.
- Anything illegal or against public policy. A prenup cannot encourage divorce, include unconscionable terms, or waive rights in ways that violate law.
Requirements for a Valid Prenup in New York
For a prenuptial agreement to be enforceable in New York, it must meet specific formal requirements:
- Written and signed. Oral prenuptial agreements are not enforceable.
- Acknowledged before a notary. New York requires prenups to be acknowledged in the same manner as a deed — before a notary public. This is a technical but critical requirement.
- Voluntary. Both parties must have signed freely, without duress or coercion.
- Full financial disclosure. Both parties should fully disclose their assets and liabilities. Concealment of significant assets can invalidate a prenup.
- Independent legal counsel. While not legally required, courts look more favorably on prenups where both parties had their own attorneys.
When Courts Throw Out Prenups
New York courts will refuse to enforce a prenup that:
- Was signed under duress (e.g., presented the night before the wedding with pressure to sign)
- Was procured by fraud or misrepresentation
- Did not comply with acknowledgment formalities
- Was unconscionable at the time of signing — so one-sided as to shock the conscience
Note: The fact that a prenup turns out to be financially unfavorable does not by itself make it unenforceable. Courts respect the right of informed adults to make their own financial arrangements.
Protecting Yourself Whether Signing or Challenging
If you are asked to sign a prenup, give yourself time to review it, consult your own attorney, and negotiate any terms that concern you. If you are the one proposing a prenup, present it well in advance of the wedding, ensure full disclosure, and encourage your partner to seek independent legal advice — all of which strengthen enforceability.
If you believe a prenup you signed is invalid or should not be enforced, an experienced attorney can evaluate the circumstances of its execution and advise you on your options.
Weinrieb Law drafts, reviews, and challenges prenuptial agreements for clients throughout Western New York. Whether you are planning ahead or facing a divorce where a prenup is at issue, we can help.