Postnuptial Agreements: It’s Not Too Late to Protect Your Assets

Most people think of marital agreements as something signed before the wedding, but New York law also lets spouses make a binding agreement during the marriage. A postnup can address an inheritance, a growing business, a blended family, or a reconciliation after a hard stretch. It also draws closer scrutiny than many couples expect. This guide explains how postnups work in New York and what improves the chance that one will be enforced.

What is a postnuptial agreement?

A postnuptial agreement (postnup) is a written contract between spouses, signed after the wedding, that sets out how property, debts, maintenance and estate rights will be handled if the marriage ends in divorce or death. New York’s statute covers agreements “made before or during the marriage” (DRL § 236(B)(3)), so a postnup is enforced under the same basic rules as a prenup. A valid agreement replaces the default rules of equitable distribution and statutory maintenance for the issues it covers (DRL § 236(B)(5)(a), (6)(a)).

A postnup is different from a separation agreement or a divorce settlement, which spouses sign when they are separating or ending the marriage. A postnup is usually signed by spouses who intend to stay married.

What is the difference between a prenup and a postnup?

Timing is the obvious difference. The formal requirements are the same, with one exception: only for an agreement made before marriage may the acknowledgment be taken by a person authorized to solemnize marriages (DRL § 236(B)(3)).

The bigger difference is the relationship. Engaged couples are not automatically treated as being in a relationship of trust and confidence (Matter of Greiff, 92 N.Y.2d 341 (1998)). Spouses are: “Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith” (Christian v. Christian, 42 N.Y.2d 63 (1977)). That is why courts look closely at whether a postnup was fair and freely made. For the pre-wedding version, see our guide to prenuptial agreements in New York.

Why couples sign postnuptial agreements

• An inheritance or family gift. Inheritances and gifts from someone other than a spouse are separate property by default (DRL § 236(B)(1)(d)). But property acquired during the marriage is presumed marital, and the spouse claiming an asset is separate must prove it (Fields v. Fields, 15 N.Y.3d 158 (2010)). A postnup can document what is separate and how it will be treated.
• A business. A business started during the marriage is generally marital property, and growth in a separate business can become marital to the extent it is due in part to the other spouse’s contributions or efforts (DRL § 236(B)(1)(c)–(d)). A postnup can set ownership and valuation terms; see protecting your business in divorce.
• A blended family. A postnup can help keep designated assets separate for children from a prior relationship, especially when paired with a coordinated estate plan.
• New debt. When one spouse takes on significant debt, the agreement can say which spouse is responsible for it as between the two of them (see the limits below).
• A change in roles or a reconciliation. Some couples sign a postnup when one spouse steps back from work to care for children, or when they reconcile after a period of difficulty.
• No prenup before the wedding. Couples who did not get to a prenup in time can address the same issues afterward.

What makes a postnup enforceable in New York?

Writing, signatures and acknowledgment

The agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (DRL § 236(B)(3)). This is mandatory. In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the Court of Appeals held a postnup unenforceable even though both spouses admitted signing it and neither claimed fraud or duress, because it was never acknowledged: “an unacknowledged agreement is invalid and unenforceable in a matrimonial action.” The certificate of acknowledgment must also be in proper form (Galetta v. Galetta, 21 N.Y.3d 186 (2013)). An affirmation under CPLR 2106 is not a substitute; see our article on CPLR 2106 affirmations. Any later amendment should be signed and acknowledged the same way.

Fair dealing between spouses

Because spouses are fiduciaries, a court can set aside an agreement that was the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct (Christian). In Petracca v. Petracca, 101 A.D.3d 695 (2d Dep’t 2012), a wife signed a postnup a few months after the wedding giving up her rights in the marital residence, her husband’s business interests and his estate, and limiting her maintenance. The Second Department affirmed the order setting it aside: the terms were “manifestly unfair given the nature and magnitude of the rights she waived,” and the trial court’s findings supported an inference of overreaching.

Financial disclosure

The statute does not list financial disclosure as a formal requirement. But because spouses are fiduciaries, incomplete disclosure can support a claim of fraud or overreaching. We recommend complete, documented disclosure of assets, debts and income, exchanged before signing and referenced in the agreement.

Separate lawyers

New York does not require each spouse to have a lawyer. For a postnup, separate counsel for each spouse is still strongly advisable. It helps show that each spouse understood the terms and agreed freely, which matters given the fiduciary duty between spouses.

What can a postnup cover?

• Property. Which assets are separate and which are marital, and how marital property would be divided. Property the spouses describe as separate in a valid written agreement is separate property (DRL § 236(B)(1)(d)(4)).
• Maintenance. A postnup may set maintenance above or below the guideline amount, or waive it. The terms must have been fair and reasonable when made, must not be unconscionable when the divorce judgment is entered, and cannot leave a spouse likely to become a public charge (DRL § 236(B)(3), (6)(h); General Obligations Law § 5-311).
• Estate rights. Spouses can waive the right to elect against each other’s wills. The waiver must be in writing, signed and acknowledged, and it can be made after the marriage (Estates, Powers and Trusts Law (EPTL) 5-1.1-A(e)). Coordinate the agreement with wills, trusts and beneficiary designations.
• Debts. Which spouse is responsible for which debts, as between the two of you.
• Children. Child support terms must include the Child Support Standards Act (CSSA) recitals, which cannot be waived (DRL § 240(1-b)(h)), and custody is decided on the child’s best interests (DRL § 240(1)(a)).

What a postnup cannot do about debts

A postnup binds the two spouses, not their lenders. If you both signed a loan, or you co-signed your spouse’s debt, the creditor can still collect from you; the agreement may give you a claim against your spouse for what you pay. If a debt is meant to be one spouse’s alone, avoid co-signing it.

How the process works

1. Consultation. Each spouse meets with their own lawyer to discuss goals.
2. Financial disclosure. The spouses exchange documented information about assets, debts and income.
3. Drafting and negotiation. The lawyers draft and negotiate the terms.
4. Review. Each spouse reviews the final draft with counsel, with time to ask for changes.
5. Signing. Both spouses sign, and a notary completes proper certificates of acknowledgment.
6. Follow-through. Update wills, trusts and beneficiary designations to match the agreement.

Can a postnup be changed or revoked later?

Yes, if both spouses agree. A change or revocation should be made in a new written agreement, signed by both spouses and acknowledged like the original (DRL § 236(B)(3)). Informal changes, such as an exchange of emails, will not be enforceable in a divorce.

When a postnup may not be the right tool

• You are already separating. If divorce is on the table, a separation or settlement agreement is usually the right document; see our guide to uncontested divorce in New York.
• One spouse will not make full disclosure. An agreement built on incomplete information invites a challenge.
• There is no specific issue to solve. If neither spouse has significant separate assets, a business, children from a prior relationship or unusual debts, a postnup may add little.

What does a postnup cost?

We prepare postnuptial agreements for a fixed fee: Standard $3,000; Complex $5,000. Joel Yacoob personally handles every matter, and consultations are by phone or video. See our postnuptial agreement page for details.

Frequently Asked Questions

What is the difference between a prenup and a postnup?

A prenup is signed before the wedding and a postnup after it. Both are governed by the same New York statute and must be in writing, signed and acknowledged. The main difference is scrutiny: spouses owe each other a fiduciary duty, so courts look closely at whether a postnup was fair and freely made, while engaged couples are not automatically in that kind of relationship. Only for a prenup may an official authorized to perform marriages take the acknowledgment.

Are postnuptial agreements enforceable in New York?

Yes, if properly made. The agreement must be in writing, signed by both spouses, and acknowledged in the form required to record a deed. Because spouses are fiduciaries, a court can set aside a postnup that resulted from fraud, duress or overreaching that made it manifestly unfair. Maintenance terms must be fair when signed and not unconscionable when the divorce judgment is entered, and no term may leave a spouse likely to become a public charge.

Does a postnuptial agreement have to be notarized in New York?

Yes. An agreement made during the marriage must be acknowledged, usually before a notary public, in the form required to record a deed. New York’s highest court has held a signed postnup unenforceable because it was never acknowledged, even though no one claimed fraud. An affirmation under CPLR 2106 does not satisfy the requirement, and any amendment should be signed and acknowledged the same way.

Can a postnuptial agreement protect me from my spouse’s debts?

Partly. A postnup can decide which spouse is responsible for a debt as between the two of you, and a court can enforce that allocation in a divorce. It does not bind creditors. If you signed or co-signed a loan, the lender can still collect from you, and your remedy would be a claim against your spouse under the agreement. Avoid co-signing debts you intend to be your spouse’s alone.

If you are considering a postnup, or want an existing agreement reviewed, Joel Yacoob can explain your options. Learn more about our postnuptial agreement services, or start your intake online.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.