Do You Need a Prenuptial Agreement? A Guide from a New York Prenuptial Agreement Attorney

If a prenup can protect you, why don't more couples get one? An experienced New York prenuptial agreement attorney can help you understand whether one makes sense for your specific situation.

Why Do I Need a Prenup?

If you're in love and trust your partner, why would you need a contract spelling out what happens if you divorce? And if you don't trust your partner, why marry them at all? There's no single answer that fits everyone.

For some couples, a prenuptial agreement is genuinely unnecessary — and even raising the idea can create unwanted tension. If you're both young, entering a first marriage, have no children, don't hold significant assets yet, and have comparable income potential, a prenup often isn't a priority. If the marriage doesn't work out, New York's equitable distribution laws will divide marital property fairly between you.

But the calculation changes when circumstances aren't so evenly matched. Consider:

• One partner has substantial assets or a business built over years — or generations — while the other has few assets or is unemployed
• One partner has children from a prior marriage they want to financially protect
• There's a significant age gap, and one partner wants to preserve inheritance for other family members
• One partner is entering the marriage with significant separate wealth they want to keep separate

In these situations, a prenuptial agreement can prevent a short marriage from resulting in one partner claiming a substantial share of assets the other spent a lifetime — or generations — building. Every couple has to weigh these questions for themselves, but understanding the purpose, advantages, and limitations of a prenup is the first step to making an informed decision. A prenuptial agreement attorney can walk through your specific situation and help you decide if one makes sense for you.

Am I Really Protected by a Prenuptial Agreement?

A prenuptial agreement is a contract between two private parties, and like any contract, it's only enforceable in court if certain conditions are met:

• It must be executed knowingly, intelligently, and voluntarily — never under fraud, duress, or undue influence
• Both parties must be competent adults (18 or older) with the mental capacity to understand what they're signing
• Its terms cannot be illegal or against public policy
• If it overrides a default provision of New York law, that waiver must be stated clearly and explicitly
• If either party isn't fluent in English, the agreement should include a clause confirming it was translated in full and that they understood and agreed to its terms

Because of these requirements, anyone considering a prenuptial agreement should work with an experienced New York prenuptial agreement attorney. The last thing you want is to go through the process of negotiating and signing an agreement, only to discover years later — in the middle of a divorce — that it's unenforceable because a provision was improperly drafted.

As long as your agreement meets these criteria, it is far more likely to be enforced. Of course, an agreement doesn't enforce itself; if one party violates or ignores it, the other must go to court to enforce it. A prenuptial agreement is a conditional contract — it's drafted before the marriage but only becomes effective once the marriage takes place, and its terms regarding property, spousal support, and (where applicable) children typically activate upon a defined "separation event," such as the filing for divorce or written notice of intent to permanently separate.

Important limitation: courts will not enforce provisions that infringe on a minor child's rights. For example, an agreement waiving child support for the first five years of marriage would not be enforced, since New York's Domestic Relations Law and Family Court Act guarantee children a minimum level of support regardless of what a prenup says. Courts will still enforce the rest of a prenuptial agreement's valid provisions even if one clause is struck down.

What Happens If I Refuse to Sign a Prenuptial Agreement?

You're always free to decline a prenuptial agreement. If you do, one of two things typically happens: your partner agrees to marry without one, or the relationship doesn't move forward. While it's not an attorney's place to give relationship advice, we can explain the legal consequences of marrying without a prenup — and later divorcing.

There's also a middle path: a postnuptial agreement, signed after the wedding, which functions similarly to a prenup and becomes effective upon a defined separation event.

What Happens Without a Prenuptial Agreement in a New York Divorce

If you divorce without a prenuptial or postnuptial agreement, New York's Domestic Relations Law (DRL) governs the outcome:

Equitable Distribution of Property

"Equitable" does not mean "equal" — it means fair, based on the circumstances. Both spouses must file full financial disclosure with the court. Property is then classified as separate property of the husband, separate property of the wife, or marital property. Marital property is divided equitably by the court unless the couple reaches their own settlement. Generally, the longer the marriage, the closer an equitable split trends toward a 50/50 division.

Without a prenup, courts weigh factors like each spouse's age, the length of the marriage, income and income potential, education, and each spouse's contribution to the marital property. A prenuptial agreement's core purpose is to define, in advance, what's separate property, what's marital property, and how marital property will be divided — taking that decision out of a judge's hands.

Spousal Support (Maintenance/Alimony)

New York uses a statutory formula based on each spouse's income, the length of the marriage, and any child support obligations. As of March 1, 2026, the maintenance formula applies to a payor's income up to a $241,000 cap, with judicial discretion above that threshold. Spousal support is limited in duration. A prenuptial agreement can waive spousal support entirely or set a specific support amount tied to the length of the marriage — and courts generally enforce these provisions as long as they're otherwise legal.

Child Custody, Visitation, and Support

New York courts have jurisdiction over minor children living in the state and will closely scrutinize any prenuptial provisions addressing custody, visitation, or child support, enforcing them only if they serve the child's best interests and meet the legal minimum for support. Absent a prenup, courts apply the DRL/Family Court Act's "best interest of the child" standard for custody and visitation, and calculate child support under New York's Child Support Standards Act (CSSA):

• 17% of combined parental income for one child
• 25% for two children
• 29% for three children
• 31% for four children
• No less than 35% for five or more children

As of March 1, 2026, these percentages apply to combined parental income up to a $193,000 cap, with courts retaining discretion to apply the same percentages — or a different approach — to income above that threshold. Judges also have discretion to deviate from the guidelines based on individual circumstances, and can impute income to a parent based on their education, skills, and earning history, even if their current reported income is lower.

Does a Prenuptial Agreement Affect Inheritance Rights?

Yes — a prenuptial agreement typically modifies each spouse's inheritance rights under New York's Estates, Powers and Trusts Law (EPTL).

The Spousal Elective Share

Under New York law, a surviving spouse cannot be completely disinherited. Regardless of what a will says — or even if there's no will — a surviving spouse has the right to claim an elective share equal to the greater of $50,000 or one-third of the net estate. This right applies whether or not the couple has children, and it extends to certain assets outside the will itself, such as joint accounts, retirement accounts, and revocable trusts. A prenuptial agreement can include a valid waiver of this elective share, which is common when one spouse wants to direct the bulk of their estate to children from a prior marriage or other relatives.

Intestate Distribution (Dying Without a Will)

If a spouse dies without a will, New York law provides that the surviving spouse receives the first $50,000 of the estate plus one-half of the remaining balance if there are surviving children (the other half goes to the children). If there are no surviving children, the surviving spouse inherits the entire estate. A prenuptial agreement can also waive or modify these default intestacy rights.

Related guides: prenuptial and postnuptial agreements, uncontested divorce in New York, and spousal support and maintenance. We meet clients at our Brooklyn office and our Hempstead office.

Talk to a New York Prenuptial Agreement Attorney

Every relationship and every set of assets is different — the right approach depends entirely on your specific circumstances. If you're considering a prenuptial or postnuptial agreement and need consultation, drafting, review, or negotiation, contact the experienced New York prenuptial agreement attorneys at Sharifov & Associates, PLLC.

• Brooklyn Office: 1629 Sheepshead Bay Rd, Brooklyn, NY 11235 · (718) 368-2800
• Long Island Office: 50 Main St, Hempstead, NY 11550 · (516) 505-2300

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Legal Disclaimer

This article is general information, not legal advice. Prior results do not guarantee a similar outcome.

The information on this page is for general informational purposes only, does not constitute legal advice, and does not create an attorney-client relationship. Your specific situation may differ, and you must consult with an attorney in an individual consultation before any legal advice can be provided.