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Invalidating a pre-marital agreement in New York

On Behalf of | Jan 22, 2024 | Property Division

Pre-marital agreements have become very common in New York State, especially between persons who have had prior marriages. While a well-drafted premarital agreement can resolve many issues efficiently and without the anger or frustration that can accompany property division in many divorces, some agreements may turn out to be unfair or prejudicial toward one of the parties.

In these cases, one of the parties may wonder whether the agreement can be declared invalid. The answer is “Sometimes.” This post will attempt to outline the circumstances in which a pre-marital agreement can be declared invalid.

Failure to follow the formal statutory requirements

An enforceable prenuptial agreement must be signed by each party before the wedding. An oral prenuptial agreement or one that is signed after the wedding cannot be enforced. Each party to a prenuptial agreement must have his or her own attorney.

If the parties did not have separate and independent counsel advising them prior to signing the agreement, the court will examine the agreement very closely for signs of unfairness. If the judge believes that the agreement is unfair on its face, the court may decline to enforce it.


Both spouses have an obligation to fully and completely disclose their assets and liabilities before the wedding and before the agreement is signed. Most judges will refuse to enforce a prenuptial agreement if one of the parties can prove fraud on the part of the other spouse. Hiding assets or liabilities can also be found to be fraudulent conduct.

Coercion and duress

If one of the parties used any type of coercion or duress to persuade the other party to sign the agreement, that party will not be allowed to enforce the agreement or recover damages for its breach. The burden of proving coercion or duress rests on the party challenging the validity of the agreement.

Unfair and inequitable

If the court finds that the agreement is unfair or inequitable for one party, the agreement may be declared unenforceable. If the judge finds a prenuptial agreement to be unfair and unfavorable toward one party, the agreement will most probably be declared unenforceable by the party who is favored by the unfairness.

Unlike fraud or coercion, a finding of unfairness is not usually predicated on the acts or omissions of one party; unfairness may be proved by comparing one or more provisions of the agreement with the couple’s present circumstances.

Contesting the validity of a prenuptial agreement in court can be a very stressful experience. The assistance of an experienced family lawyer can be essential to achieving a positive outcome.