Thinking about getting a prenuptial agreement in the Big Apple? Good for you! It’s a great first step to protecting your individual financial interests while aligning with your future spouse on life goals. But there are some things you should know about getting a prenup in the state of New York—from fairness to spousal support to notarization and more. Let’s get into the six things you should know about prenups in NYC. 

New York has a strong public policy in favor of prenuptial agreements

People often (mistakenly) believe that prenuptial agreements are easily invalidated in New York, but that is simply not the case. In fact, New York courts favor prenuptial agreements and have routinely held that “The strong public policy in favor of allowing parties to decide their own interests through premarital contracts is well established, as is the presumption of validity of a duly executed prenuptial agreement.” (D.K. v. E.K., 140 N.Y.S.3d 684 (N.Y. Sup. Ct. 2021)). In this specific case, where the court reasserted the strong policy in favor of prenups, the court upheld a prenup even though it was one-sided and left the husband in a far superior position than the wife. It reasoned that as long as each party had financial disclosure and all of the material facts when entering the agreement, New York courts will uphold such an agreement. 

If you waive spousal maintenance, you should include exact calculations

Recent New York case law suggests courts may scrutinize spousal maintenance waivers more closely unless the agreement clearly shows the amount being waived. For example, if the person waiving their right to spousal maintenance would otherwise receive $50,000 under default New York maintenance law, that $50,000 amount must be included in the agreement so the person can “knowingly” waive their right to it. The court explained that it’s too attenuated for people to simply waive their right to theoretical alimony, instead, there must be the actual calculations included in the agreement, with the other party’s income.

This new rule makes getting a prenuptial agreement with a spousal maintenance waiver in New York without an attorney much more difficult, as the average person may not know how to properly calculate alimony and include it in the agreement. Hiring a lawyer for your New York prenup (if you are waiving alimony) is now especially important, so they may properly include this new requirement.  

Prenups in New York must be notarized 

Another key requirement for New York prenuptial agreements is notarization. Prenuptial agreements in New York (according to NY Dom Rel L § 236), must be acknowledged in the same manner as a deed. This means that your prenuptial agreement must be notarized with the proper language included in the notary block. 

Notarization is the act of having your agreement “acknowledged” (a.k.a., witnessed) by a registered notary public who confirms your identity and ensures you understand what you are signing. After witnessing both parties signing, they will then attach their official seal to the document. It is a fairly simple and affordable way to make sure your agreement holds up in a New York court. Best news? You can get your HelloPrenup prenup notarized online in New York! 

Financial disclosure is a must 

In order to enter into a prenuptial agreement in New York, both parties must provide the other with full disclosure of all of their assets, debts, income, and future known inheritances. Both parties must understand their partner’s financial situation before waiving rights and agreeing to terms within a contract. For example, if one partner secretly has a $100 million family trust fund, it would be important for the other person to understand this before they give up their right to alimony. Another example would be if one party has a ton of debt—agreeing to share debt in a prenup without understanding how much debt the other party is in would be unfair. 

Without a prenup, your property will be divided under equitable distribution principles 

So, what happens without a prenuptial agreement in New York? Well, regarding property division, a court will divide your assets under the principles of equitable distribution. This means that a judge will divide up your stuff based on what they deem as equitable, which may not be 50-50. The court will apply the factors under NY Dom Rel L § 236, such as the income of each party and the duration of the marriage, to determine which spouse should get what. This is a case-by-case analysis that may vary depending on the circumstances at hand. 

Equitable distribution is unpredictable and may not be 50-50 or what you believe to be fair. With a prenuptial agreement, you can override equitable distribution and divide up your property as you and your partner see fit. 

Prenups are forever, unless you amend or revoke them 

A frequently asked question about prenuptial agreements is, “How long does a prenup last?” And the answer is “forever,” unless you and your spouse want it to terminate at some point. Prenuptial agreements don’t “end” at any point unless you include a sunset clause that purposely terminates the contract at a certain date or if the couple agrees to revoke or amend the agreement later on during the marriage. Otherwise, your prenup will be in place until you divorce or die. 

Note that you cannot unilaterally amend or revoke a prenuptial agreement—you and your spouse must decide together to change the terms of the agreement or terminate it completely. If you both agree that you want to terminate or change the agreement, then you must follow the same rules that were required to create the original agreement, such as putting the revocation in writing and having it notarized. 

The bottom line on New York prenuptial agreements 

The bottom line is that courts favor prenups in New York, which means that it is difficult to get them thrown out if you follow the laws required by the state. If you are waiving spousal maintenance (a.k.a., alimony) then you must include the specific amount of alimony you are waiving within the agreement. Your agreement must also be notarized and have proper financial disclosure in order to be recognized as valid. And, yes, your prenup is forever, unless you want it to terminate at some point, but you’ll need to jointly decide that with your spouse. And, finally, don’t forget that without a prenup, your assets will be divided based on equitable distribution principles (not automatically 50-50). So go ahead and get that prenup if you want to override those rules! Happy planning!