Postnuptial Agreements: What They Can and Cannot Do
A postnuptial agreement is a written contract between spouses made after a marriage begins. Like a prenuptial agreement, which is created before marriage, a postnup allows couples to address or change arrangements concerning their finances and property during and after the marital relationship. Postnups are recognized under New York law, provided they meet certain legal standards.
At its core, a postnuptial agreement defines each spouse’s financial rights, duties and expectations. It can serve as a proactive tool, clarifying how marital and separate assets or liabilities will be handled in the event of separation, divorce or death. For some, it forms part of long-term financial planning or serves as a way to prevent future disputes before they arise.
Couples may choose to create postnups for several reasons. Major financial changes, such as receiving an inheritance, launching or expanding a business or a significant career shift, may prompt the desire to clarify financial arrangements. Blended families often use postnups to ensure children from previous relationships are protected. Some spouses draft postnuptial agreements as part of rebuilding trust after challenging events or to clarify expectations around finances, reducing the likelihood of future conflict.
To be valid, a postnuptial agreement must satisfy several legal requirements set by New York Domestic Relations Law § 236(B)(3). It must be written and signed by both spouses. It must be entered into voluntarily; any pressure, manipulation or coercion can render it invalid. Full and honest financial disclosure is also necessary, covering assets, debts, income and obligations. The agreement should be fair and not unconscionable and it must be properly executed according to state law (for example, witnessed or notarized in New York). In most cases, the marriage itself provides the necessary consideration (exchange of value) for the contract.
A postnup can cover many issues: division of marital or separate property upon divorce, allocation of debts and terms regarding spousal support. It’s also frequently used for business ownership, succession plans, coordinating estate planning and assigning financial responsibilities during the marriage.
However, some matters remain off-limits. A postnup cannot dictate child custody or parenting schedules unless the parties wish to enter into such an agreement, to be effective when executed. Future child support cannot be waived or limited other than in certain circumstances where the parties agree upon same in writing. The agreement also cannot set illegal terms, impose undue penalties for divorce or include personal conduct clauses that are against public policy. Courts may not enforce unfair, coercive or one-sided agreements.
A postnuptial agreement will not work if either spouse refuses full disclosure, if the process feels rushed or imbalanced or if deeper issues require counseling rather than a legal contract. Ultimately, a carefully crafted postnuptial agreement can foster transparency and reduce misunderstandings, but each spouse should consult an experienced family law attorney to ensure the agreement is fair, enforceable and customized to their unique needs.
At Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York, we can answer your questions about postnuptial agreements and prepare one that is enforceable and serves your needs. We serve clients across Long Island. Call us at 631-360-0400 or contact us online.