New York Postnuptial Agreement Attorneys
Customized agreements to address financial changes and clarify expectations during marriage.
What is a Postnuptial Agreement?
A postnuptial agreement, commonly called a postnup, is a marital contract signed after marriage. It can establish or revise how spouses will treat property, debts, income, inheritance, and spousal maintenance during the marriage and if the marriage ends through divorce or death.
Abrams Fensterman, LLP prepares, reviews, and negotiates customized postnuptial agreements for married clients throughout New York. Our Family & Matrimonial Law attorneys help spouses address changing financial circumstances and document their expectations with attention to New York law and potential future enforceability.
We represent business owners, physicians and other professionals, individuals with substantial investments or family wealth, and spouses whose family or financial responsibilities have changed. We serve clients throughout New York City, including Brooklyn, as well as Long Island, Westchester, and other New York communities. Our offices are in Lake Success, Brooklyn, White Plains, Rochester, and Albany.
Postnuptial Agreements Under New York Law
Under New York Domestic Relations Law § 236(B)(3), a postnuptial agreement must be in writing, signed by the parties, and acknowledged or proven with the formalities required for recording a deed.
Because spouses have a fiduciary relationship, courts scrutinize postnuptial agreements more closely than ordinary contracts. The terms, the parties’ financial circumstances, and the manner in which the agreement was negotiated and signed can all be important.
Our attorneys pay particular attention to:
- Financial transparency: Review assets, income, liabilities, and the information exchanged during negotiations.
- Voluntary and informed decisions: Allow meaningful time for review and consideration of the agreement’s consequences.
- Independent legal advice: Encourage separate representation for each spouse.
- Fairness and potential challenges: Evaluate concerns involving fraud, duress, overreaching, undue influence, or unconscionability.
- Proper execution: Address New York’s signing and acknowledgment requirements.
What Can a Postnuptial Agreement Address?
A postnup should reflect the spouses’ current financial picture and the matters they want to resolve. Provisions may address:
- Existing separate and marital property: Identify assets brought into the marriage and property acquired since the wedding.
- Future acquisitions and income: Establish how later earnings, investments, or increases in asset value will be treated.
- Property division: Define agreed terms for allocating covered assets if the marriage ends.
- Business and professional interests: Address a new enterprise, an ownership change, distributions, or growth in an existing practice.
- Spousal maintenance: Negotiate support terms that account for the spouses’ circumstances, subject to applicable legal limits.
- Inheritance and estate rights: Coordinate financial expectations with existing or updated estate planning.
- Retirement accounts and investments: Address their intended treatment and any additional documents or consents required by law.
- Existing and future debts: Clarify responsibility between the spouses for specified obligations.
Benefits of a Postnuptial Agreement
A postnup can give spouses an opportunity to revisit financial expectations as their lives change. Potential benefits include:
- Updated financial arrangements: Address assets, obligations, or income that have changed since the marriage began.
- Business continuity: Clarify the treatment of a newly formed business or an expanding professional practice.
- Recognition of family responsibilities: Consider the financial effects of a career change, caregiving role, or time away from the workforce.
- Planning for children and beneficiaries: Coordinate marital rights with assets intended for children from prior relationships or other beneficiaries.
- Debt clarity: Record the spouses’ respective responsibilities for covered debts.
- Reduced uncertainty: Document agreed financial expectations and help narrow potential areas of future conflict.
When Should You Consider a Postnuptial Agreement?
A postnup may be appropriate when circumstances change during marriage, including:
- Receiving an inheritance, a substantial gift, or other significant assets.
- Starting, acquiring, selling, or expanding a business.
- Purchasing real estate or changing how property is owned.
- Experiencing a significant change in compensation, investments, or debt.
- Making a career or caregiving decision that affects earning capacity.
- Revisiting estate plans or financial commitments involving children from prior relationships.
- Clarifying expectations that were not addressed earlier in the marriage.
The agreement should be considered carefully, with sufficient time for financial review, negotiation, and independent legal advice. A postnup can address financial planning during an ongoing marriage; it does not require the spouses to be pursuing a divorce.
Our Approach to Preparing and Negotiating Postnups
Our attorneys begin with your present circumstances and the reasons you are considering an agreement. The process includes:
- Reviewing the current financial picture: Examine assets, liabilities, ownership records, compensation, estate plans, and any existing marital agreement.
- Clarifying the proposed changes: Identify what has changed during the marriage and which financial expectations need to be documented.
- Negotiating informed terms: Address differing priorities while allowing each spouse time and an opportunity for independent advice.
- Preparing and executing the agreement: Draft terms responsive to your objectives and address applicable New York formalities.
Frequently Asked Questions About Postnups
Are postnuptial agreements enforceable in New York?
Postnups may be enforced when they satisfy applicable legal requirements. Proper execution is important, and courts can also examine fairness, the parties’ relationship, and the circumstances in which the agreement was reached.
Why do courts scrutinize postnuptial agreements?
Spouses owe duties of good faith to one another. Courts may examine whether the agreement resulted from fraud, duress, overreaching, or other inequitable conduct, as well as the agreement’s terms and the surrounding circumstances.
Can a postnup revise an earlier marital agreement?
A properly prepared agreement may revise earlier financial terms. Counsel should review the existing document, its amendment provisions, and applicable execution requirements before new terms are signed.
Does each spouse need a separate attorney?
Independent legal representation is strongly recommended. Each spouse should have an opportunity to understand the proposed terms and obtain advice about the rights and obligations involved.
Does signing a postnup mean we are planning to divorce?
No. Spouses may use a postnup to address financial changes and clarify expectations while continuing their marriage.
Can a postnup decide child custody or child support?
A postnup cannot conclusively settle future custody or eliminate a child’s right to support. Courts retain authority over these matters under applicable New York law.
