New York: C
Statutes
New York Domestic Relations Law § 236(B)(3)
- Agreement must be in writing and notarized
- Must be signed by both parties
- Maintenance provisions must be fair and reasonable at time of execution AND not unconscionable at time of final judgment (double review)
- Child custody and support provisions cannot be affected
- Both spouses must have attorneys if alimony is modified, or at least a detailed schedule of what alimony would be under the statute and what it is modified to
Case law
J.M. v. G.V., 2025 NY Slip Op 25004 (Sup. Ct. Kings County 2025)
Photographer husband waived spousal maintenance without having an attorney. Court rejected prenup because he did not have counsel and needed a detailed schedule showing what amount of alimony would be calculated under state law and what it was being modified to. Rest of agreement upheld via severability clause.
Lesson: Both parties should have an attorney. A detailed schedule of what alimony would be under the statute, and what it is modified to under the agreement, must be present in the prenup if the affected party doesn’t have an attorney.
Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2d Dept. 2013)
Appellate court invalidated prenuptial agreement based on fraudulent inducement where husband allegedly promised to "tear it up" when they had children, presented just 4 days before wedding.
Lesson: Sign the prenup at least 60 days before the wedding, giving your spouse 2-3 weeks to review the final version. Never “promise” or say you will modify or rip up the agreement - it’s the foundation upon which you are getting married and a map of how you divide up responsibilities in the marriage, not a pot of gold to be awarded after a half-hearted attempt at building a family. Severability and No Modification clauses make your prenup more survivable to legal challenges (included).
Schlosser v. Schlosser, 219 A.D.3d 1455 (2d Dept. 2023)
Prenuptial agreement upheld limiting the defendant's share of the marital residence to $700,000 if the divorce occurred before the fifth anniversary of the marriage.
Lesson: New York courts like to uphold prenups unless alimony modification is “unconscionable” at enforcement. Assets can be kept as separate property and do not need to be split as marital property.
Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dept. 2018)
Court upheld prenuptial agreement with spousal maintenance waiver despite defendant's argument that immigration affidavit of support replaced it.
Lesson: New York courts will uphold prenup terms so long as alimony modification is not “unconscionable” at enforcement.
Petracca v. Petracca, 101 A.D.3d 695 (2d Dept. 2012)
Court invalidated prenuptial agreement presented just four days before wedding, finding timing contributed to overall coercive situation.
Lesson: sign the prenup 60 days before the wedding, giving your spouse 2-3 weeks to review the final version before signing.