Requirements of a Valid New York Prenuptial Agreement
Requirements of a Valid New York Prenuptial Agreement
To be enforceable under New York Domestic Relations Law §236(B)(3), a prenuptial agreement must be in writing, signed by both parties, and acknowledged in the manner required for a deed to be recorded, not just witnessed or notarized in the ordinary sense. The agreement must also be entered voluntarily, with full disclosure of each party’s assets at the time of signing, and its terms can’t be unconscionable. New York has not adopted the Uniform Prenuptial Agreement Act; its rules come from DRL statutes and decades of state court decisions.
Both parties should have the opportunity to retain independent legal counsel before signing. Sharing a single attorney creates an ethical conflict that courts scrutinize closely. It’s also worth noting that one party’s threat to call off the wedding unless the other signs is not considered duress under New York law. However, agreements presented as take-it-or-leave-it close to the wedding date have been found to constitute overreaching. Full and honest financial disclosure is essential; misleading or incomplete disclosure can expose the agreement to a fraud challenge.
When a prenup is executed incorrectly, it may be thrown out in divorce proceedings. That can be a potentially devastating outcome. Because our practice focuses exclusively on divorce and matrimonial law, we bring litigation experience to how these agreements are drafted, knowing how they may be scrutinized if challenged in court.