Prenuptial and Postnuptial Agreements in New York

I wrote the Unofficial Guide to NY Prenuptial Agreements because clients kept asking the same questions and the answers were scattered across cases that nobody outside the profession reads. This page is the short version. The book goes deeper, and the sample is available on the e-book page.

What can a prenuptial agreement do?

Under DRL 236B(3), an agreement made before or during the marriage can do four things. It can provide for the making of a will or a waiver of the right to elect against a will. It can set the ownership, division, or distribution of separate and marital property. It can provide for the amount and duration of maintenance, so long as the terms were fair and reasonable when made and are not unconscionable at the time of the final judgment. And it can provide for the custody, care, education, and maintenance of any child, subject to the court's authority over children.

That last point is important. A prenuptial agreement cannot bind the court on custody or child support. Custody is always decided on the child's best interests at the time, and child support is always subject to the Child Support Standards Act. The agreement can address property and maintenance with near certainty. It cannot address the children with any certainty at all.

What formalities are required?

The statute says the agreement must be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. The Court of Appeals has enforced that requirement strictly, and it is where the largest number of agreements fail.

In Matisoff v. Dobi in 1997, the Court refused to enforce a postnuptial agreement that both parties admitted signing because it had never been acknowledged before a notary.

In Galetta v. Galetta in 2013, the Court found a certificate of acknowledgment defective because it omitted the language showing the notary had confirmed the signer's identity, and held that the notary's later affidavit was not enough to cure the defect on that record.

In Anderson v. Anderson in 2021, the Court held that the acknowledgment has to happen at or about the time of signing. An acknowledgment obtained seven years later was ineffective. The Court did leave open that a defective certificate, as opposed to a missing acknowledgment, may be cured by proof that the statutory formalities were actually followed at the time.

What this means is that a prenuptial agreement signed at the kitchen table and notarized later is probably worthless, and one notarized with a defective certificate is a lawsuit. Sign in front of the notary, use the current statutory certificate form, and keep the original.

How are they set aside?

Marital agreements get closer scrutiny than ordinary contracts because the parties are in a relationship of trust. The Court of Appeals in Christian v. Christian in 1977 held that an agreement can be set aside for fraud, duress, overreaching, or unconscionability, and that a court can strike an offending provision and enforce the rest. The party challenging the agreement has the burden.

The grounds that actually succeed in the Second Department are these.

Fraud in the inducement. In Cioffi-Petrakis v. Petrakis in 2013, the court set aside a prenuptial agreement because the husband had orally promised to tear it up after the first child was born and never did.

Unconscionability at the time of judgment. The statute says maintenance terms must not be unconscionable when the judgment is entered, which means an agreement that was fair in 2005 can become unenforceable in 2025. In McEvoy v. McEvoy in 2023, the Second Department set aside a prenuptial agreement where the wife, after a stroke and without assets of her own, faced becoming a public charge.

Lack of disclosure combined with lopsided terms. Non-disclosure alone does not void an agreement, but where one party did not know what the other owned and the terms are one-sided, the two together support a finding of overreaching.

Duress in the sense of timing. An agreement presented days before the wedding is not automatically invalid, but the timing is evidence, and combined with no independent counsel and no disclosure, it becomes a problem.

Failure to recite the maintenance guidelines. Since 2016, an agreement that waives or reduces maintenance must state that the parties were advised of the guidelines and, where it deviates, what the guideline amount would have been. A 2025 Kings County decision refused to enforce a waiver by a self-represented spouse because the recital was missing. 

What makes an agreement hold up?

Independent counsel for each party, in writing. Full financial disclosure attached as schedules. Time. A draft delivered weeks before the wedding, with a signing date well before the event. Terms that leave the less monied spouse with something, because an agreement that leaves one spouse with nothing after a long marriage invites the McEvoy result. Proper acknowledgment. And a sunset or escalator clause where appropriate, so that the agreement adjusts as the marriage lengthens rather than becoming the thing the marriage is measured against.

Postnuptial agreements

Everything above applies to an agreement signed during the marriage. Postnuptial agreements are common where one spouse starts a business, receives an inheritance, or where the couple wants to settle financial questions without divorcing. They get the same scrutiny, and because the parties are already married, the courts look hard at whether one spouse pressured the other.

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