New York: C
Statutes
New York Domestic Relations Law § 236(B)(3)
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Unconscionability—Execution AND Enforcement
Courts review unconscionability at BOTH execution and enforcement. Property provisions are reviewed only at execution, but spousal maintenance provisions are also reviewed at enforcement (divorce), meaning courts can reject spousal support provisions if circumstances change during marriage. Unfortunately, this encourages divorce and litigation.
Spousal Support Public Assistance Minimum
Complete waivers are permitted BUT courts will invalidate any waiver that would make a spouse a "public charge" (dependent on government assistance). Higher spousal support may be required for wealthy couples. New in 2025: spousal support waivers must include actual incomes and calculated statutory maintenance amounts being waived, or the waiver is invalid.
Timing
No statutory deadline, but courts have invalidated prenups presented days or weeks before weddings. We recommend signing 60+ days prior to the wedding with 2-3 weeks review time to reduce challenge risk. Reach out to an attorney 4-6 months before with your PerfectPrenup draft.
Independent Counsel
HIGHLY recommended and required if spousal support modification. Lack of independent counsel dramatically increases scrutiny and raises enforceability risks.
Financial Disclosure
Full and honest disclosure of assets, debts and income. Include any assets worth $1,000+ so they aren’t split 50/50 as marital property later. For maintenance waivers, parties must now disclose actual incomes and include statutory maintenance calculations. Financial disclosure waivers are not allowed.
Moderate Burden to Challenge
Challenging party bears "high burden" of proof but valid defenses include “unconscionability” of spousal support at enforcement (divorce), fraud, duress, overreaching, or becoming a public charge. Threatening to cancel the wedding does NOT constitute duress.
Child Support
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Courts enforce prenups with one-sided terms if properly executed with counsel. Spousal support modification is reviewed again at enforcement (divorce) and cannot be “unconscionable” or leave spouse on public assistance. A schedule is required showing how much spousal support would be paid under statute and what is being offered.
J.M. v. G.V., 2025 NY Slip Op 25004 (Sup. Ct. Kings Cty. 2025)
Maintenance waiver struck down for unrepresented husband (photographer, $27,000 net worth vs. pharmacist wife's $455,000) because prenup signed one week before wedding lacked actual income figures and statutory maintenance calculations required for "knowing waiver." Prenups in New York must know have a full schedule showing what spousal support would be under the statute, and what is being offered.
Taha v. Elzemity, 157 A.D.3d 744 (2d Dep't 2018)
Prenup invalidated where $20,000 lump sum from physician husband earning $300,000/year would leave unemployed wife with three children at risk of becoming public charge.
McEvoy v. McEvoy, 223 A.D.3d 877 (2d Dep't 2023)
Prenup set aside where stay-at-home wife's debilitating stroke would leave her destitute under agreement while husband retained $942,000 in assets and $190,000/year income.
Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2d Dep't 2013)
Prenup signed four days before wedding invalidated for fraudulent inducement where husband promised to tear up agreement after having child but never intended to honor promise, leaving wife nothing after 12 years and three children.
Petracca v. Petracca, 101 A.D.3d 695 (2d Dep't 2012)
Postnup signed four months after marriage invalidated where homemaker wife waived all rights to $3.1 million residence (plus $3-5 million renovations) and husband's business interests due to overreaching and manifestly unfair terms.
Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016)
One-sided prenup enforced despite real estate agent wife having independent counsel who advised against signing because she "bargained for the benefits" and court refused to "undo the agreement merely because she may now, in retrospect, view her choices as having been improvidently made."
Postiglione v. Postiglione, 125 A.D.3d 625 (2d Dep't 2015)
Prenup with maintenance waiver upheld—no evidence of fraud, duress, or unconscionability, and agreement was fair on its face.
Tamburello v. Tamburello, 85 N.Y.S.3d 199 (2d Dep't 2018)
Prenup enforced where wife claimed immigration affidavit of support replaced prenup; court ruled affidavit was obligation to government, not contract between spouses.