New York’s prenup rules are stricter than many couples expect, above all on how the agreement must be signed. This guide covers what makes a prenup enforceable, what it can and cannot do, and how to plan the timing.
What is a prenuptial agreement in New York?
A prenuptial agreement (prenup) is a written contract two people sign before they marry to set their financial rights if the marriage ends in divorce or death. Without one, New York’s default rules apply: property acquired during the marriage is generally marital property, divided equitably (fairly, not necessarily equally), and maintenance is set under statutory guidelines. A valid prenup replaces those defaults for the issues it covers (Domestic Relations Law (DRL) § 236(B)(5)(a), (6)(a)).
New York has not adopted the Uniform Premarital Agreement Act that New Jersey and a number of other states use. A New York prenup is governed by DRL § 236(B)(3), General Obligations Law (GOL) § 5-311 and New York case law. For New Jersey, see our guide to New Jersey’s Uniform Premarital Agreement Act.
What makes a prenup enforceable in New York?
Writing, signatures and acknowledgment
An agreement made before or during the marriage is enforceable in a divorce “if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (DRL § 236(B)(3)). In practice, each signature is acknowledged before a notary public or another authorized official, who completes a certificate of acknowledgment in the proper form. For a prenup, the acknowledgment may also be taken by a person authorized to perform marriages under DRL § 11, which includes clergy of any religion.
This is not a technicality. In Galetta v. Galetta, 21 N.Y.3d 186 (2013), the Court of Appeals refused to enforce a prenup because the notary’s certificate omitted the standard language confirming that the notary knew the signer’s identity, and the notary’s later affidavit did not cure the defect. An unacknowledged agreement is “invalid and unenforceable in a matrimonial action” (Matisoff v. Dobi, 90 N.Y.2d 127 (1997)). An affirmation under CPLR 2106 (a statement signed under penalty of perjury without a notary) is not a substitute.
Fair dealing
New York has a strong public policy favoring people’s right to order their own affairs by contract, including prenups (Matter of Greiff, 92 N.Y.2d 341 (1998)). Duly executed prenups “are accorded the same presumption of legality as any other contract” (Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 (2001)), and engaged couples are not automatically in a relationship of trust that shifts the burden to the spouse defending the agreement (Greiff). Still, a court can set aside an agreement that was the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct (Christian v. Christian, 42 N.Y.2d 63 (1977)).
Financial disclosure
Disclosure is not a statutory requirement, and incomplete disclosure is not, by itself, a reason to void a prenup (Anonymous v. Anonymous, 123 A.D.3d 581 (1st Dep’t 2014)). But hiding assets or income can support a claim of fraud or overreaching. We recommend full, documented disclosure of assets, debts and income, exchanged well before signing and attached to the agreement.
Separate lawyers
New York does not require each party to have a lawyer, but separate counsel is strongly advisable. In J.M. v. G.V., 87 Misc. 3d 171 (Sup. Ct., Kings County 2025), a trial court found a maintenance waiver unenforceable where the waiving spouse had no lawyer and the agreement did not disclose the parties’ incomes or the guideline maintenance amount being waived. It is a trial-level decision that does not bind courts statewide; see our discussion of J.M. v. G.V.
What can a New York prenup cover?
DRL § 236(B)(3) allows four categories of terms:
- Property: which assets stay separate, how marital property is divided, and how growth in separate property is treated. By default, appreciation of separate property is marital to the extent it is due in part to the other spouse’s contributions or efforts (DRL § 236(B)(1)(d)); a prenup can change that.
- Maintenance: its amount and duration, including a cap or a full waiver, within the limits below.
- Estate rights: a promise to leave property by will, or a waiver of the right to elect against the other spouse’s will.
- Children: terms on custody, care, education and support, subject to DRL § 240.
A prenup can also keep a business or practice separate, set a valuation method, and allocate debts such as student loans. The value of enhanced earning capacity from a license or degree is no longer treated as marital property (DRL § 236(B)(5)(d)(7)), but a business built during the marriage generally is.
Maintenance terms and waivers
Maintenance terms must have been “fair and reasonable at the time of the making of the agreement” and must not be “unconscionable at the time of entry of final judgment” (DRL § 236(B)(3)). A waiver that was fair at signing can be tested again at the divorce, years later. No agreement may leave a spouse likely to become a public charge (GOL § 5-311). Within those limits, spouses may cap or waive maintenance; the guidelines do not override a valid agreement that departs from them (DRL § 236(B)(6)(h)). A careful waiver states the parties’ incomes and the guideline amount being given up.
Inheritance and retirement benefits
A waiver of the right of election (a surviving spouse’s right to a share of the estate regardless of the will) must be in writing, signed and acknowledged (Estates, Powers and Trusts Law (EPTL) 5-1.1-A(e)(2)). Employer retirement plans need separate attention: a spouse’s consent to waive survivor benefits under many plans does not count if signed before the marriage (26 C.F.R. § 1.401(a)-20, Q&A-28), so the prenup should require signing the plan’s consent forms after the wedding.
Child support, custody and religious arbitration
Child support. Any child support agreement must state that the parties were advised of the Child Support Standards Act (CSSA) and that the formula amount is presumptively correct; if it deviates, it must state the formula amount and the reasons. Those recitals “may not be waived,” and the court keeps discretion (DRL § 240(1-b)(h)). The practical course is usually to leave child support to the CSSA; see our guide to New York’s child support income cap.
Custody. A prenup cannot bind a court on custody, which is decided “having regard to the circumstances of the case and of the respective parties and to the best interests of the child” (DRL § 240(1)(a)). Agreements to arbitrate custody are not enforced (Glauber v. Glauber, 192 A.D.2d 94 (2d Dep’t 1993)).
Beth din arbitration. New York courts have enforced written agreements to arbitrate marital disputes before a beth din. In Friedman v. Friedman, 34 A.D.3d 418 (2d Dep’t 2006), the Second Department compelled arbitration of a divorcing couple’s unresolved financial issues before the Beth Din of America under an agreement both had signed, noting that an arbitrated child support award can be vacated if it violates the CSSA. The Court of Appeals has held that a ketubah’s promise to appear before a beth din is enforceable as a secular contractual obligation (Avitzur v. Avitzur, 58 N.Y.2d 108 (1983)). A prenup can require arbitration of financial issues before a named beth din (written arbitration agreements are enforceable under CPLR 7501); custody stays with the court. The halachic prenup, aimed at preventing Get refusal, is a separate document; see how the halachic prenup works and our guide to the Orthodox Jewish prenup.
What a New York prenup cannot do
- Require a divorce. Spouses cannot contract to dissolve the marriage; an agreement does that if it expressly requires a divorce or provides for procuring grounds for one (GOL § 5-311).
- Leave a spouse likely to become a public charge (GOL § 5-311).
- Override the CSSA or the child’s best interests (DRL § 240).
- Reliably police personal conduct. The statute permits “other terms and conditions of the marriage relationship,” but promises about chores or social life are hard to prove and enforce. We generally advise against them.
Common misconceptions
- “Prenups are only for the wealthy.” Business owners, people expecting an inheritance, people with significant debt, and people remarrying with children often benefit from clear terms.
- “A signed prenup can’t be challenged.” Any prenup can be challenged. Proper execution, disclosure, separate lawyers and time to review improve the chance it is enforced as written.
How far in advance should you sign a prenup?
New York has no statutory waiting period between signing a prenup and the wedding. Timing still matters, because an agreement first presented days before the ceremony invites claims of duress or overreaching. Raise the subject months ahead, exchange disclosure early, give each side time to review the draft with a lawyer, expect more than one round of revisions, and sign, with proper acknowledgments, well before the final weeks of wedding planning.
What does a prenup cost at Neuhaus & Yacoob?
We prepare prenuptial agreements for a fixed fee: Standard $2,500; Complex $4,000; High-Net-Worth $6,000+. Joel Yacoob personally handles every matter, and consultations are by phone or video. Your future spouse should have a separate lawyer. See our prenuptial agreement page for details.
Frequently Asked Questions
Are prenuptial agreements enforceable in New York?
Yes. New York courts presume a properly executed prenup is valid. It must be in writing, signed by both parties, and acknowledged in the form required to record a deed. A court can still set aside an agreement obtained through fraud, duress or overreaching, and maintenance terms must be fair when signed and not unconscionable when the divorce judgment is entered.
What can be included in a New York prenuptial agreement?
A New York prenup can keep property separate, set how marital property is divided, set or waive maintenance, waive inheritance rights, allocate debts, and require arbitration of financial disputes, including before a beth din. It can address children, but child support terms must comply with the Child Support Standards Act, and custody is decided by the court on the child’s best interests.
How far in advance should a prenup be signed before the wedding?
New York law sets no minimum waiting period. Timing still matters, because an agreement presented days before the ceremony invites claims of duress or overreaching. As a practical matter, start months ahead, exchange financial disclosure early, give each side time to review the draft with a lawyer, and sign well before the final weeks of wedding planning.
Does a prenup have to be notarized in New York?
Yes. Each signature must be acknowledged in the form required to record a deed, usually before a notary; for a prenup, a person authorized to perform marriages may also take it. Without a proper acknowledgment the agreement cannot be enforced in a divorce, and an affirmation under CPLR 2106 is not a substitute.
Can a prenup waive spousal maintenance in New York?
Yes, but the terms must have been fair and reasonable when signed, must not be unconscionable when the divorce judgment is entered, and cannot leave a spouse likely to become a public charge. A 2025 Kings County trial court refused to enforce a waiver by an unrepresented spouse where the agreement did not disclose incomes or the guideline amount waived.
If you are engaged and considering a prenup, Joel Yacoob can walk you through your options. Learn more about our prenuptial agreement services, or start your intake online or call (718) 975-1123.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.
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