Why Sign a Prenup Before Marrying in New York — and What Should It Say?

Many people see a prenuptial agreement as a sign of distrust. In New York, it is better understood as a financial roadmap the two of you agree on while you are on the best of terms.

What Happens Without a Prenup?

New York is an equitable distribution state. In a divorce, property acquired during the marriage is generally marital property, regardless of whose name is on the title (Domestic Relations Law (“DRL”) §236(B)(1)(c)). Even separate property can be partly exposed: appreciation caused by the other spouse’s contributions or efforts may be divided (Price v. Price, 69 N.Y.2d 8 (1986)). Spousal maintenance is calculated under a statutory formula.

A prenup lets the two of you set these rules yourselves, instead of leaving them to a judge.

What a New York Prenup Typically Covers

1. Separate property schedule: List each party’s savings, real estate, investments and business interests, and confirm that they, along with their appreciation and income, remain separate.
2. Marital earnings and assets: How salaries, bonuses, retirement accounts (401(k), IRA) and a home bought during the marriage will be owned and divided.
3. Businesses: Keep a company or family business intact, so a divorce does not disrupt operations or other owners.
4. Debts: Who is responsible for student loans, credit cards and business loans.
5. Maintenance (alimony): You may waive it, cap it or fix an amount. But the terms must be fair and reasonable when signed and not unconscionable at divorce (DRL §236(B)(3)), and cannot leave a spouse likely to need public assistance (General Obligations Law §5-311). A 2025 New York trial-court decision, J.M. v. G.V., indicates that a waiver should state the guideline amount calculated under the statutory formula, to show the waiver was knowing.
6. Inheritance rights: A New York spouse has an elective share of the greater of $50,000 or one-third of the estate (EPTL §5-1.1-A). This matters especially in second marriages or when there are children from a prior relationship.
7. Other terms: Counsel fees, dispute resolution, and a severability clause so one invalid provision does not sink the rest.

What a Prenup Cannot Decide

• Custody and parenting time: The court decides based on the child’s best interests at the time of divorce. A prenup cannot lock this in.
• Child support: Governed by the Child Support Standards Act (CSSA) and subject to court review.
• Lifestyle clauses: Terms about chores or visits to in-laws are generally unenforceable.

Execution Details Make or Break the Agreement

A New York prenup must be in writing, signed by both parties, and acknowledged in the form required to record a deed (DRL §236(B)(3)). New York’s highest court has struck down agreements solely because the acknowledgment was defective (Matisoff v. Dobi, 90 N.Y.2d 127 (1997); Galetta v. Galetta, 21 N.Y.3d 186 (2013)). We also recommend:

• Full financial disclosure by both parties, with asset schedules attached;
• Separate, independent counsel for each party;
• Signing well before the wedding, not days before, to avoid later claims of duress;
• A translation if either party is not fluent in English.

The Bottom Line

A prenup is not a plan for divorce. It is a way to reduce uncertainty in a marriage. The earlier you start the conversation, the easier it is to reach an agreement you both accept and that will hold up later.

Attorney’s perspective

I usually recommend starting the prenup conversation three to six months before the wedding. The first step is assembling both parties’ asset schedules, which often takes longer than negotiating the terms. On signing day, I personally check the form of the acknowledgment, because that is exactly where many New York agreements have failed.

For advice about your own situation, call +1 718-218-5805 or schedule a consultation. We meet clients in Flushing and Manhattan, in English or Chinese.

Series overview

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, please contact us.

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