Postnuptial Agreement Lawyer in New York

What a postnuptial agreement is

A postnuptial agreement is a written contract between spouses, signed during the marriage, that sets out their rights if the marriage ends in divorce or death. New York governs it under the same statute as a prenup: Domestic Relations Law (DRL) § 236(B)(3) covers an agreement “made before or during the marriage.” A postnup may address separate and marital property, the amount and duration of maintenance, estate rights, and terms about children, which remain subject to DRL § 240.

The statute also lets spouses decide what counts as marital property. Marital property generally means property acquired during the marriage, “except as otherwise provided in agreement” under DRL § 236(B)(3), and property described as separate in such an agreement is separate property (DRL § 236(B)(1)(c), (d)(4)).

Common reasons couples sign a postnup

Without an agreement, New York’s default rules decide how these assets are treated. For more, see protecting your business in divorce and trusts and equitable distribution.

Why courts look closely at postnuptial agreements

Spouses owe each other a duty of good faith. As the Court of Appeals put it, “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)). An agreement can be set aside if it was the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct.

In Petracca v. Petracca, 101 A.D.3d 695 (2d Dep’t 2012), the Second Department set aside a postnup as manifestly unfair. The wife had given up substantial property and inheritance rights, the disparity between the spouses was vast, and the trial court’s credibility findings supported an inference of overreaching.

The signing formalities are strict too. In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), a postnup signed by both spouses was unenforceable because it was never acknowledged, even though neither spouse claimed fraud or duress.

Every postnup, and every later amendment, must be in writing, signed by both spouses, and acknowledged in the form required to record a deed. An affirmation under CPLR 2106 does not satisfy that requirement. The full text of DRL § 236 is on the State Senate website.

Steps that strengthen a postnup

• Full, documented disclosure. Disclosure is not a listed statutory requirement, but between spouses, who are fiduciaries, concealment invites a claim of fraud or overreaching.
• Separate lawyers. Independent advice helps show that each spouse understood the terms and signed voluntarily.
• Time to review. Avoid presenting an agreement with a deadline attached.
• Terms that can be explained. A one-sided agreement can support an inference of overreaching. Maintenance terms must be fair and reasonable when made and not unconscionable when the divorce judgment is entered (DRL § 236(B)(3)).
• Proper execution. Our fee includes properly executed documentation, with each signature acknowledged in the form New York requires.

What a postnup cannot do

• Bind creditors. A postnup allocates responsibility between the spouses. It does not change what either spouse owes a lender or other creditor under that spouse’s own obligations.
• Override the court on children. Child support terms are subject to DRL § 240, and an agreement presented to the court must include the Child Support Standards Act recitals (DRL § 240(1-b)(h)). Custody and parenting time are decided on the child’s best interests (DRL § 240(1)(a)).
• Leave a spouse likely to become a public charge, or require a divorce. General Obligations Law § 5-311 bars agreements that relieve a spouse of support in that way and agreements that require the dissolution of the marriage.

Estate rights and the right of election

A postnup can also address what happens at death. A surviving spouse’s right of election against a will can be waived in a writing that is subscribed and acknowledged, and the waiver is effective whether it is signed before or after the marriage (Estates, Powers and Trusts Law § 5-1.1-A(e)). Estate terms should be coordinated with your wills, trusts and beneficiary designations.

Adding a halachic postnup

Couples who married without a halachic prenup can sign a postnuptial version, in which both spouses agree to submit disputes about the Get to a designated Beis Din (rabbinical court); the Beth Din of America publishes one. It can be signed on its own or together with a financial postnup. See agunah prevention and the halachic prenup and our Jewish divorce and Get page.

How the process works

1. Consultation. Meet by phone or video after completing our online intake.
2. Marital asset review. We review what each of you owns and owes, how title is held, and what has changed since the wedding.
3. Customized terms. We draft an agreement for your circumstances and goals.
4. Review by your spouse’s lawyer. Changes are negotiated in writing.
5. Signing. Both spouses sign, and each signature is acknowledged.

What to have ready

• any existing prenuptial agreement, with all amendments;
• recent statements for bank, investment and retirement accounts;
• deeds and mortgage statements for any real estate;
• business formation documents, operating or shareholder agreements, and recent tax returns;
• documents showing an inheritance or gift, such as an estate distribution or trust statement; and
• your current wills, trusts and beneficiary designations.

The process is confidential, and Joel Yacoob personally handles every agreement. For background, read postnuptial agreements in New York. To begin, start your case online or call (718) 975-1123, Monday through Friday, 9 a.m. to 7 p.m.