Why Do Couples Get A Prenup?

Prenuptial agreements are not just for the wealthy. They're for any couple who wants to make their own decisions about money, property, and obligations — rather than letting a New York court make those decisions for them later.

Under New York's Domestic Relations Law, anything of value either spouse acquires during the marriage is presumptively marital property and gets divided through "equitable distribution" if the marriage ends. Equitable distribution doesn't necessarily mean equal — it means whatever a judge decides is fair, taking into account fifteen statutory factors. Without a prenup, that judge gets to decide. With one, you and your future spouse decide together, in advance, while you're at your most reasonable.

That's the real "why." Everything below is about whether your specific situation makes opting out of the default worth doing.

Are you a candidate for a prenup?

If you or your future spouse can say "yes" to any of the following, a prenup is worth serious consideration.

Do you own real estate — a condo, co-op, or house? New York real estate is the most common reason couples get a prenup. If you own a co-op or condo before marriage, it starts as your separate property — but the moment your spouse contributes to the mortgage, makes improvements, or even just lives there for years, the line between separate and marital property starts to blur. A prenup defines clearly what stays yours, what becomes joint, and how any appreciation gets treated.

Are you obligated on a lease for rental property? A long-term lease is a financial obligation that can become a shared problem if the marriage ends mid-lease. A prenup can clarify which spouse is responsible for the remainder of the lease and how related deposits and damages are handled.

Do you have stocks or retirement funds? 401(k)s, IRAs, brokerage accounts, and pension benefits accumulated before the marriage are separate property — but the growth on those assets during the marriage can become marital property under New York law. A prenup can preserve both the principal and the appreciation as yours, or define exactly how they'll be split.

Do you own a business? This is the situation where the cost of not having a prenup is highest. If your business grows during the marriage, your spouse may have an equitable distribution claim on the increase in value — and valuing a business in a contested divorce is one of the most expensive things you can do. A prenup can keep the business separate, define how growth is treated, and avoid forensic valuations later.

Might you receive an inheritance, or do you already have one? Inheritances are separate property under New York law as long as you keep them in your name and don't commingle them with marital funds. But many people unknowingly commingle by depositing inheritance money into a joint account or using it for a marital home down payment. A prenup creates an explicit record that the inheritance is meant to remain separate, even if commingling happens later.

Do you have children from a previous marriage? A prenup is one of the most important estate-planning tools for blended families. It can preserve specific assets for your children's eventual inheritance, prevent your new spouse from electing against your will under New York's spousal-share rules, and make sure that what you intend for your kids actually gets to them.

Do you carry student loan debt? Student loans you brought into the marriage are your separate debt under New York law. But payments made on those loans during the marriage, using marital income, can create complicated reimbursement claims if the marriage ends. A prenup can prevent this from becoming an issue and keep each person's pre-marriage debt cleanly their own.

Do you have credit card debt? Credit card debt typically follows the cardholder, but if a spouse becomes an authorized user, opens joint cards, or pays down the other's debt with marital income, the lines blur quickly. A prenup can keep each person's existing debt their own responsibility and define how new debt incurred during the marriage will be allocated.

What a New York prenup can do for you

Within the limits of New York law, a prenup can do three things that the default rules can't:

Protect assets and inheritances. A prenup can designate as separate property assets that would otherwise be subject to equitable distribution — including the appreciation of premarital assets and inheritances received during the marriage. This is the core function of most prenups.

Determine future financial obligations. A prenup can set the amount and duration of spousal maintenance (or waive it entirely, subject to specific requirements). It can address how income earned during the marriage will be treated, how joint expenses will be split, and what happens to specific assets if the marriage ends.

Keep debts separate. A prenup can make clear that each spouse's pre-marriage debts remain their own responsibility, and can define how debts incurred during the marriage will be allocated between you. Without a prenup, debt allocation in a New York divorce is up to the court.

What a prenup can't do

We tell our clients honestly what a New York prenup can't do, because the limits matter:

It can't decide child custody or visitation. Custody is always determined by the court based on the best interests of the child at the time of any proceeding — not based on what parents agreed to before the child was born.

It can't waive child support. The right to child support belongs to the child, not the parents. Any provision attempting to waive it is unenforceable.

It can't be unconscionable. A prenup that would leave one spouse destitute or on public assistance won't be enforced. New York courts review prenups under a two-part test: terms must be fair and reasonable when signed, and not unconscionable when enforcement is sought.

It can't be procured by fraud or duress. A prenup signed under last-minute pressure, without adequate disclosure, or without the opportunity for independent legal review is vulnerable to being set aside.

A prenup protects both of you

The most persistent myth about prenups is that they only protect the wealthier spouse. They don't. A well-drafted prenup can secure spousal maintenance for a spouse who interrupts a career to raise children, protect a less-monied spouse from inheriting the other's debts, define inheritance rights for both partners' children from prior relationships, and establish clear expectations that prevent contentious arguments later.

Prenups work best when both spouses have their own counsel and both understand exactly what they're signing. That's why our service includes the option to arrange a discounted consultation with an independent attorney for your fiancé.

Ready to get started?

If your situation matches anything on this page, the next step is straightforward.

Learn how our process works, see our pricing (every service is a flat $799), or read more about the New York law that governs prenups.

Below are a number of the most commonly asked questions we receive about our service and prenuptial agreements in general: