If you are already married and considering a postnuptial agreement, one question matters most: will the agreement hold up if you ever need it? A postnuptial agreement is a legally binding contract between married spouses that defines how property, debts, and support will be handled in the event of divorce or death. Under New York Domestic Relations Law (DRL) § 236(B)(3), these agreements are valid and enforceable when they meet specific requirements, but drafting or execution errors can jeopardize the enforceability of part or all of the agreement.
A postnuptial agreement is not a sign that your marriage is failing. For many Manhattan couples, it is the opposite. Changes in income, a new business, a large inheritance, or a decision to leave the workforce to raise children can all shift the financial balance of a marriage. A postnuptial agreement addresses those changes directly, giving both spouses clarity and control over their financial future.
At The Law Office of Ryan Besinque, NYC divorce lawyer Ryan Besinque has guided hundreds of couples through divorce, custody, and marital agreement matters across New York City. Our Manhattan postnuptial agreements lawyer understands how New York courts evaluate these contracts and what it takes to draft an agreement that protects both spouses.
This guide covers what a postnuptial agreement includes, how New York law governs enforceability, when a postnuptial agreement makes sense, and how to avoid the most common mistakes. Call The Law Office of Ryan Besinque at (929) 251-4477 for a free consultation.
A postnuptial agreement is a written contract between two married spouses that outlines how their assets, debts, and financial responsibilities will be divided if the marriage ends in divorce or if one spouse dies. The agreement takes precedence over New York’s default equitable distribution rules, which would otherwise give a judge broad discretion to divide marital property.
Under DRL § 236(B)(3), a postnuptial agreement may address the ownership, division, or distribution of separate and marital property, maintenance (spousal support) terms, testamentary provisions and waivers of the right to elect against a will, and child-related provisions, but any custody or child-support terms remain subject to judicial review and the child’s best interests at the time of the case. The statute requires that any maintenance provisions must be fair and reasonable at the time of signing and cannot be unconscionable at the time a court enters final judgment.
A postnuptial agreement functions nearly identically to a prenuptial agreement. The key difference is timing. A prenuptial agreement is signed before the wedding, while a postnuptial agreement is signed after. Because both spouses are already in a legal relationship when a postnup is created, New York courts tend to review these agreements with heightened attention to fairness.
Key Takeaway: A postnuptial agreement is a legally recognized contract under DRL § 236(B)(3) that allows married spouses to define property rights, maintenance, and financial responsibilities outside of New York’s default equitable distribution rules. Courts will enforce these agreements when they meet specific legal requirements.
Ryan Besinque of The Law Office of Ryan Besinque can explain how New York law applies to your specific situation. Call (929) 251-4477 to schedule a free consultation.
Many couples do not think about a marital agreement until circumstances change after the wedding. A postnuptial agreement allows spouses to respond to those changes rather than leaving financial outcomes to a judge.
When one spouse receives a substantial raise, bonus structure, or equity stake, the financial dynamics of the marriage shift. A postnuptial agreement can clarify how newly acquired wealth will be classified and what each spouse’s rights are if the marriage ends.
Under New York law, inheritances are generally considered separate property as long as the recipient keeps the funds in their own name. However, if inherited money is deposited into a joint account or used to improve marital property, it can lose its separate character. A postnuptial agreement can confirm that specific inherited assets remain separate property regardless of how they are held.
Starting, acquiring, or growing a business during the marriage creates complex valuation and division issues if divorce occurs. A postnuptial agreement can define how a business will be valued, whether the non-owner spouse has a claim to business appreciation, and how business assets will be treated in a divorce. For Manhattan couples involved in startups, professional practices, or real estate ventures, this protection can prevent a business from being disrupted by divorce proceedings.
When one spouse leaves the workforce to care for children or manage the household, a postnuptial agreement can acknowledge that sacrifice and establish maintenance terms that reflect the economic impact of that decision.
Couples who have experienced infidelity or financial dishonesty sometimes use a postnuptial agreement as part of their effort to rebuild the marriage. The agreement can set financial terms that both spouses find fair and can even include provisions tied to specific future conduct.
Key Takeaway: Postnuptial agreements are most commonly used when financial circumstances change during a marriage, including new wealth, inheritance, business growth, career sacrifices, or marital difficulties. The agreement gives both spouses a structured way to address those changes rather than relying on a court’s discretion later.
If your financial situation has changed since your wedding, Ryan Besinque can help you determine whether a postnuptial agreement is appropriate. Contact The Law Office of Ryan Besinque at (929) 251-4477.
Ryan Besinque is a divorce and family law attorney licensed to practice in both New York and California. He received his Juris Doctor from the University of San Diego School of Law, where he graduated in the top third of his class. During law school, he served as President of Phi Delta Honors and received the CALI Award for Family Law and the Outstanding Service Award from the Legal Aid Society of San Diego.
After graduating with honors in 2012, Ryan Besinque began practicing family law in Los Angeles. He expanded his practice to New York City in 2018 after being admitted to the New York Bar. He has represented hundreds of clients in divorce, custody, support, family offense, and marital agreement matters across Manhattan, Brooklyn, the Bronx, Queens, Westchester County, and Nassau County. In addition to his private practice, he provides legal services through the Manhattan Assigned Counsel Panel, representing individuals who cannot afford private representation.
A postnuptial agreement can address many of the same financial and property issues that would arise in a divorce, allowing spouses to resolve them on their own terms rather than through litigation.
Common provisions include:
Separate property identification: Defining which assets each spouse brought into the marriage and confirming they will remain that spouse's sole property
Marital property classification: Identifying specific assets or accounts that should be treated as marital property, even if they would otherwise qualify as separate property under state law
Property division terms: Setting the terms for how marital property, including real estate, bank accounts, retirement funds, and investments, will be divided in a divorce
Debt allocation: Clarifying which spouse is responsible for debts incurred before or during the marriage, preventing one spouse from bearing the financial burden of the other's obligations
Spousal maintenance: Establishing whether maintenance will be paid, the amount, the duration, and any conditions, subject to the requirements of General Obligations Law § 5-311
Testamentary provisions: Including a contract to make a will provision or a waiver of the right to elect against a spouse's will
New York law places limits on what a postnuptial agreement can definitively resolve. Child custody and child support cannot be permanently determined by a postnuptial agreement. While the agreement can include provisions about children, a court retains the authority to modify those terms based on the best interests of the child at the time of divorce. According to the New York City Bar Association, a postnuptial agreement also cannot include terms that are unconscionable, fraudulent, or executed under duress.
Ryan Besinque can review your financial situation and help you determine which provisions belong in your postnuptial agreement. Call (929) 251-4477 for a consultation.
New York courts will enforce a postnuptial agreement that meets the requirements established under DRL § 236(B)(3) and related case law. If any of these requirements are missing, a court may decline to enforce part or all of the agreement.
| Requirement | What It Means | What Happens If Missing |
|---|---|---|
| Written and signed | The agreement must be in writing and signed by both spouses | Agreement is not valid |
| Acknowledged with formality | Must be executed and acknowledged with the same formality required for a deed to be recorded | Agreement may be unenforceable |
| Full financial disclosure | Both spouses must provide complete and honest disclosure of all assets, debts, and income | Court may set aside the agreement |
| Voluntary execution | Both spouses must sign freely, without coercion, duress, or undue pressure | Agreement is voidable |
| Fair and reasonable terms | Terms must be fair at the time of signing and not unconscionable at the time of enforcement | Court may refuse to enforce specific provisions or the entire agreement |
| Independent legal counsel | Each spouse should have their own attorney; if one waives counsel, the waiver should be in writing | Court will scrutinize the agreement more closely |
New York courts apply a two-part fairness test to postnuptial agreements. First, the court evaluates whether the terms were fair and reasonable when the agreement was signed. Second, the court considers whether enforcing the agreement at the time of divorce would produce an unconscionable result. An agreement that appeared balanced at signing may still be rejected if circumstances have changed so dramatically that enforcement would leave one spouse without adequate resources. Additionally, as mentioned, including determinations on child custody and support, which cannot be addressed by postnups, in the agreement may result in part or the whole of the postnup becoming unenforceable.
The Law Office of Ryan Besinque can draft an agreement that meets every enforceability requirement under New York law and fits your and your family’s circumstances. Call (929) 251-4477.
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Even a carefully drafted postnuptial agreement can be challenged and potentially set aside. Understanding the most common grounds for invalidation can help you avoid those pitfalls from the start.
If one spouse conceals assets, understates income, or provides misleading financial information during the disclosure process, a court may invalidate the entire agreement. New York courts require both spouses to make a full and fair disclosure of their financial circumstances before signing.
An agreement signed under pressure, threats, or manipulation is voidable. Courts look at the circumstances surrounding the signing, including whether one spouse was given adequate time to review the document, consult with an attorney, and consider the terms. An agreement presented as an ultimatum during a marital crisis may face additional scrutiny.
A postnuptial agreement that heavily favors one spouse at the expense of the other may be found unconscionable. If enforcement would leave one spouse with virtually nothing while the other retains substantial assets, a court may decline to enforce it. The unconscionability standard applies both at the time of signing and at the time the agreement is brought before a court.
While New York does not absolutely require each spouse to have separate legal representation, the absence of independent counsel significantly weakens the agreement’s enforceability. Courts examine whether both spouses understood what they were signing and whether the terms were adequately explained. If one spouse had an attorney and the other did not, the court may presume the unrepresented spouse was at a disadvantage.
A postnuptial agreement that is not properly acknowledged before a notary or that fails to meet the formalities required for recording a property deed may be deemed unenforceable on procedural grounds alone.
Key Takeaway: Postnuptial agreements can be invalidated due to fraud, hidden assets, coercion, unconscionable terms, lack of independent counsel, or improper execution. Having an attorney draft and review the agreement significantly reduces these risks.
Contact Ryan Besinque at (929) 251-4477 to make sure your postnuptial agreement is drafted correctly from the start.
The most obvious difference between a prenuptial and postnuptial agreement is timing. A prenuptial agreement is signed before the wedding, while a postnuptial agreement is signed after the couple is already married. However, there are additional differences that affect how courts evaluate each type of agreement.
Courts may apply greater scrutiny to postnuptial agreements because both spouses are already in a legal relationship that creates fiduciary duties. Before marriage, each party is negotiating at arm’s length. After marriage, spouses owe each other a heightened duty of good faith and fair dealing, which means a court may look more carefully at whether both parties had equal bargaining power.
From a practical standpoint, both agreements can cover the same subjects: property division, maintenance, debt allocation, and testamentary provisions. The enforceability requirements are also similar. Both must be in writing, signed by both parties, and acknowledged with proper formality. Both require full financial disclosure and must contain terms that are fair and reasonable.
For couples who did not sign a prenuptial agreement before the wedding, a postnuptial agreement offers many of the same protections. The key is ensuring the agreement is drafted with the heightened scrutiny standard in mind, which means taking extra care with financial disclosure, fairness of terms, and independent legal representation.
Ryan Besinque handles both prenuptial and postnuptial agreements for Manhattan couples. Call (929) 251-4477 to discuss which option fits your situation.
Without an agreement, New York’s equitable distribution rules give a judge the authority to divide marital property in whatever manner the court considers fair, which may not align with what either spouse wants.
The challenge arises when separate property becomes commingled with marital assets. If one spouse deposits an inheritance into a joint bank account, or if both spouses use separate funds to purchase a jointly titled home, the separate character of those assets may be lost. A postnuptial agreement can prevent this by explicitly identifying which assets are separate and which are marital, creating a record that protects both spouses if a divorce occurs.
A postnuptial agreement can also convert separate property into marital property if both spouses agree. For example, one spouse may own a home purchased before the marriage but agree through a postnuptial contract that the home should be treated as marital property and divided in a divorce.
Key Takeaway: A postnuptial agreement gives spouses control over how their assets are classified, preventing the commingling problems that frequently arise when separate property is mixed with marital assets. Without an agreement, a court applies equitable distribution rules that may not reflect either spouse’s intentions.
Ryan Besinque of The Law Office of Ryan Besinque can help you identify and protect your separate property through a properly drafted postnuptial agreement. Call (929) 251-4477.
Creating an enforceable postnuptial agreement in New York requires careful attention to both substance and process. Cutting corners at any stage can give a court reason to reject the agreement later.
Creating an enforceable postnuptial agreement requires careful consideration of the steps and processes involved and each spouse’s circumstances. The Law Office of Ryan Besinque can guide you and your spouse through each step. Call (929) 251-4477 to get started.
The Law Office of Ryan Besinque represents clients in postnuptial agreement matters throughout Manhattan and the surrounding boroughs, including Brooklyn, the Bronx, Queens, and neighboring Westchester County and Nassau County. Postnuptial agreements and related family law matters in Manhattan are handled through the New York County Supreme Court, located at 60 Centre Street, New York, NY 10007, where the Matrimonial Support Office assists with divorce filings, maintenance calculations, and enforcement proceedings.
If your financial situation has changed since your wedding, or if you and your spouse want to establish clear terms for property, support, and debt before any issues arise, a postnuptial agreement can provide the protection you need. Without one, New York’s equitable distribution rules leave those decisions to a judge who does not know your family or your priorities.
Ryan Besinque has represented clients in matters of divorce, custody, support, and marital agreements throughout Manhattan and New York City. He understands how the New York County Supreme Court evaluates postnuptial agreements and what it takes to draft an agreement that a judge will enforce. Ryan Besinque works directly with each client to identify their goals, address their concerns, and create agreements tailored to their specific financial circumstances.
Call The Law Office of Ryan Besinque at (929) 251-4477 to schedule a free consultation. Our office is located at 115 W 25th Street, 4th Floor, New York, NY 10001, and serves clients throughout Manhattan, Brooklyn, the Bronx, Queens, Westchester County, and Nassau County.
Yes. Under DRL § 236(B)(3), New York recognizes postnuptial agreements as valid and enforceable contracts. The agreement must be in writing, signed by both spouses, properly acknowledged, and supported by full financial disclosure. Both spouses should have independent legal counsel, and the terms must be fair and reasonable at signing and not unconscionable at the time of enforcement.
The primary difference is timing. A prenuptial agreement is signed before the wedding, and a postnuptial agreement is signed after the marriage has begun. Both can cover the same subjects, including property division, maintenance, and debt allocation. Courts may review postnuptial agreements more closely because married spouses owe each other fiduciary duties that engaged couples do not.
A postnuptial agreement may include provisions about child custody and support, but those provisions are not binding on a court. New York law requires that child custody and support decisions reflect the best interests of the child at the time of divorce, and a judge retains the authority to modify any terms the parents agreed to in a postnuptial contract.
If a court later discovers that one spouse concealed assets or provided misleading financial information during the disclosure process, the court may set aside part or all of the postnuptial agreement. Full and honest financial disclosure is one of the most important requirements for enforceability.
While no law requires you to have an attorney, drafting a postnuptial agreement without legal representation significantly increases the risk that a court will refuse to enforce it. The agreement must comply with specific statutory requirements, and both spouses should fully understand the terms they are agreeing to. Having independent legal counsel for each spouse is the most effective way to protect the agreement’s enforceability.
The best time is before any conflict or crisis arises. Agreements signed during a period of marital stability are more likely to withstand scrutiny than those signed during a separation or when divorce is being considered. Major life changes, such as receiving an inheritance, starting a business, or one spouse leaving the workforce, are common triggers for creating a postnuptial agreement.
The cost depends on the complexity of the couple’s financial situation and the issues being addressed. Simple agreements involving limited assets cost less than agreements addressing business valuations, multiple properties, or complex investment portfolios. Ryan Besinque can provide a cost estimate during a free initial consultation at (929) 251-4477.
Yes. Both spouses can agree to modify a postnuptial agreement at any time, as long as the modification meets the same legal requirements as the original agreement. Changes should be made proactively, before either spouse contemplates separation or divorce, to reduce the risk of a court questioning the modification’s validity.