What Is a New York Postnuptial Agreement?
A New York postnuptial agreement lets couples determine the division of their assets and debts if they later divorce. This document helps protect each spouse’s individual assets. It’s useful if one spouse owns a business, has debt, or receives an inheritance.
New York divorce courts follow equitable distribution laws, meaning they divide assets based on specific factors. They consider the length of the marriage and each spouse’s offerings to determine who gets what after a split. With this system in place, property divisions are not always 50/50.
Without a postnup, the state decides which spouse takes on debts or receives assets based on NY Dom Rel L § 236. A postnup allows you and your spouse to make those decisions yourself.
Prenup vs. Postnup
Couples sign a prenuptial agreement before marrying. This makes it unlike a postnup, which they sign after marriage.
How to Write a Postnuptial Agreement in New York
A postnuptial agreement should include several points of information. Let the Legal Templates step-by-step document builder guide you through the process of writing your own.
- Fill in identifying information: List the names of both spouses, their address, and any children they have. The children may be from previous relationships or children the spouses share.
- Record financial assets and obligations: Disclose your bank accounts and other assets. List your debts, such as student loan debt, vehicle liens, and mortgages.
- Divide ownership rights: Define marital property and property that will remain separate.
- Assign business holdings: State which spouse will maintain ownership to protect your business.
- Address debt: Include a clause on who will assume debts. They can be preexisting debts or ones accumulated during the marriage.
- Divide residential property: Decide who will live in the marital home. If you will sell it, determine where the proceeds will go. You also have the option to assign household expenses during the marriage.
- Provide for any pets: A pet custody agreement prevents future disputes over the care and custody of animals adopted before marriage or acquired together.
- Determine spousal support: Address whether a spouse will receive alimony. Alimony is calculated based on the parties’ earning potential, each party’s relative expenses, and whether one party stayed home to care for the children. An agreement providing for spousal support will be upheld as long as it is fair and reasonable.
- Include additional clauses: Insert other stipulations in the event of one party’s disability or death.
- Acknowledge witness involvement: New York postnups require notary acknowledgment. This is proof that the parties’ signatures were confirmed for validity by a notary public.
- Sign the document: Both spouses must sign and date the agreement.
Sample New York Postnuptial Agreement
View our free New York postnuptial agreement template to understand its structure. Learn what to include in yours, and use our document builder to get started. Available in PDF and Word formats.
Legal Requirements and Considerations for New York Postnups
Per NY Dom Rel L § 236, both spouses must engage in a full financial disclosure as part of any matrimonial action for support. If a court later discovers that either party hid assets or debts during postnup creation, the document can be invalidated. Both parties must also mutually agree on the terms of the postnup. Furthermore, it must be in writing, as New York does not allow a verbal postnup.
Signing Requirements
New York requires both spouses to sign the document. They must both sign it willingly, and there must not be evidence of coercion or signing under duress. Otherwise, the document is subject to later challenges, as emphasized in Hershkowitz v Levy (2021). The agreement must also be notarized.
Legal Representation
Although New York doesn’t require legal representation for postnups, each party should consider hiring a New York postnuptial agreement attorney. A lawyer can review the document to ensure each party’s interests are fairly represented.
Excluded Terms
A New York postnuptial agreement cannot govern issues surrounding child custody, visitation, or support. State courts determine these issues at the time they arise. This way, they can account for the child’s needs at the appropriate time.
Per NY Dom Rel L § 236(b)(3), parties can enter into agreements regarding custody and support in a postnup. However, those agreements are not binding on the court if the court later determines that a different arrangement is better for the child under NY Dom Rel L § 240.
Validity & Enforceability
Courts can examine postnuptial documents for evidence of excessive influence or unfair advantage. If they find something unfair per Petracca v. Petracca (NY App. Div. 2012), they can invalidate the agreement. Spousal agreements are generally upheld unless evidence of unfair practices is later uncovered, per McKenna v. McKenna (2014).
Limitations
Written agreements between spouses during a marriage are generally enforceable. They can address property distribution and spousal maintenance if they are fair and conscionable at the time of the judgment.
New York prevents spouses from creating a postnuptial contract that would leave one spouse unable to support themselves, per NY Gen Oblig L § 5-311. Judges reserve the right to rule a postnuptial agreement unfair later.
