The statutory requirements for a prenuptial agreement (a “prenup”) are set forth in Domestic Relations Law §236(B)(3), which provides that an agreement made before or during the marriage is enforceable if it is 1) in writing, 2) subscribed by the parties, and 3) acknowledged or proven in the manner required to entitle a deed to be recorded. That’s it—that’s all the law requires. Any agreement that meets these elementary criteria is presumptively valid, and any party looking to rebut this presumption faces a high burden. See D.K. v. E.K, 140 N.Y.S.3d 684, 687 (Sup. Ct. 2021).
However, even though it is very difficult to set aside a New York prenup, it is not impossible. In Christian v. Christian, a seminal case on the enforceability of marital agreements, the court noted several distinct grounds for setting aside a marital agreement: fraud, duress, overreaching resulting in manifest unfairness, and unconscionability. 365 N.E. 2d 63 (N.Y. 1977). These remain the same basic legal grounds for challenging a prenup today.
