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Practice Area

Prenuptial & Postnuptial
Agreements

A New York prenuptial or postnuptial agreement is a contract between spouses that reorders what the Domestic Relations Law would otherwise do. Done right, it protects pre-marital wealth, business interests, and family trusts, and takes most of the fight out of a future divorce. Done wrong, it is set aside at the moment it is relied on.

The Statutory Framework

What New York Law
Actually Requires

Prenuptial and postnuptial agreements in New York are governed by Domestic Relations Law § 236(B)(3), which permits spouses to contract out of equitable distribution, waive maintenance, direct the disposition of property on death, and address child-related matters subject to the court's parens patriae authority. The statute imposes two formal requirements: the agreement must be in writing, subscribed by the parties, and acknowledged or proven in the manner required for a deed to be recorded. An agreement that fails either requirement is void. A single defective notarial acknowledgment, discovered years later, has ended more prenup fights than any substantive challenge.

Beyond the formalities, courts review these agreements against the backdrop of two settled principles. The first, from Christian v. Christian, 42 N.Y.2d 63 (1977), is that spousal contracts are subject to a higher standard than ordinary commercial contracts because of the confidential relationship between the parties. The second, from Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001), is that an acknowledgment that does not conform to Real Property Law § 309-a renders the entire agreement unenforceable, even where the signatures are genuine and the terms are fair. Michel Law builds every agreement to withstand both standards from the first draft.

What We Handle

Scope of
Representation

Prenuptial Agreement Drafting
Bespoke prenuptial agreements tailored to the specific assets, business interests, trust beneficial interests, inherited property, and family circumstances the client is bringing into the marriage. Full disclosure schedule, independent-counsel representation on both sides, and a signing timeline that does not undermine voluntariness.
Prenuptial Agreement Review
Independent review of an agreement drafted by the other party's counsel. Many agreements presented to a prospective spouse are overreaching, procedurally defective, or substantively unconscionable in a way the signing party has not had explained. Review happens before anything is signed.
Postnuptial Agreements
Agreements entered during the marriage, often triggered by a change in circumstances: a business sale, a liquidity event, a new child from a prior relationship, a near-separation that produced a reconciliation on written terms. Subject to the same formalities as a prenup and a heightened standard of fairness because the leverage dynamic is different.
Trust & Inheritance Provisions
Specific provisions addressing the treatment of trust beneficial interests, anticipated inheritances, and family wealth. Includes GRATs, SLATs, dynasty trusts, and discretionary trusts where the beneficial interest itself is not marital property but distributions and appreciation during the marriage can become so without careful drafting.
Business Interest Protection
Provisions addressing closely held business interests, professional practice interests, equity grants vesting during the marriage, and the appreciation attributable to active management by the title-holding spouse. Coordinates with the client's corporate and tax counsel so the operating agreement, the buy-sell, and the agreement all point the same direction.
Maintenance Waivers
Full or partial waivers of spousal maintenance, drafted to the Petracca standard (Petracca v. Petracca, 101 A.D.3d 695 (2d Dep't 2012)) and framed so a court looking at the agreement at the time of divorce does not conclude the waiver has become unconscionable in the interim.
Enforceability Review of Existing Agreements
Analysis of agreements signed years earlier. The common defects are notarial, disclosure-related, and procedural: an acknowledgment that lacks the Real Property Law § 309-a language, a disclosure schedule that was never attached, a signing session with no independent counsel for the less-wealthy party. Each is a potential ground to set the agreement aside, in whole or in part.
Challenging a Prenup in Divorce
Representation of the spouse seeking to invalidate or reform an agreement in the context of a filed divorce action. The grounds are formal defect, procedural unconscionability (duress, lack of counsel, inadequate disclosure, timing proximate to the wedding), and substantive unconscionability under the Christian framework.
Our Approach
I
Formalities first. A properly executed acknowledgment under Real Property Law § 309-a, a complete disclosure schedule actually attached to the agreement, and an execution ceremony that produces a clean record. These are not drafting details; they are the enforceability floor.
II
Independent counsel for both sides, always. An agreement signed by a prospective spouse without their own attorney is a candidate for later procedural challenge. We insist the other party retain counsel. If they will not, we document that fact in writing and in the agreement itself.
III
Timing matters. An agreement presented and signed in the days before a wedding is vulnerable on voluntariness grounds. We begin negotiations early (ideally 90 to 120 days before the wedding) and will not rush an execution to meet a schedule the parties set without legal input.
IV
Specificity over boilerplate. Vague provisions invite litigation about what the parties meant. A clean agreement identifies each asset, each business interest, and each trust by name, specifies how appreciation and distributions are treated, and leaves nothing for a divorce court to construe twenty years later.
V
Pressure-test for the Christian standard. Before an agreement is signed, we read it against the Christian v. Christian framework and ask: at the moment this is enforced in a divorce court, does it still look fair enough to survive? A provision that looks reasonable today but becomes grossly one-sided in twenty years is a provision that will not be enforced in twenty years.
Common Enforceability Challenges

Where New York Prenups
Actually Fail

Agreements get set aside in New York for a short list of recurring reasons. Understanding them is how a well-drafted agreement avoids them.

Defective acknowledgment. Bloomfield v. Bloomfield and its progeny hold that an acknowledgment not substantially conforming to Real Property Law § 309-a renders the agreement void. The defect is often cosmetic (a missing phrase, a non-compliant jurat), but the consequence is total. We draft every acknowledgment to the statute and verify execution with a notary who understands the standard.

Inadequate financial disclosure. A prenup without a complete, dated schedule of assets and liabilities for each party is open to challenge on the basis that the signing party could not have made an informed decision. We attach a full schedule as an exhibit and have each party initial it. Where a party refuses to disclose, we document the refusal and the responding party's informed decision to sign anyway.

Procedural unconscionability. Hoffman v. Hoffman, 100 A.D.3d 704 (2d Dep't 2012), and later cases set aside agreements where the circumstances of signing (duress, lack of counsel, timing, cognitive capacity) establish that consent was not meaningfully given. The counter-measures are independent counsel on both sides, a signing timeline that is not wedding-proximate, and a clean record.

Substantive unconscionability. Petracca v. Petracca reaffirmed that an agreement so one-sided that no fair-dealing person would offer it and no person in their right senses would accept it is unenforceable even without procedural defect. The remedy is to draft provisions that leave each party with something, even where the economic weight is lopsided, and to document the consideration flowing to each side.

Child-related provisions overreaching. Prenups cannot prospectively waive child support below the Child Support Standards Act minimums or dictate custody. We draft around these constraints rather than against them.

Postnuptial Agreements

When a Postnup
Is the Right Tool

A postnuptial agreement is a prenup entered after the marriage has already begun. The formal requirements are identical: DRL § 236(B)(3), writing, signatures, Real Property Law § 309-a acknowledgment. The substantive standard is heightened: because spouses are already in a confidential fiduciary relationship, courts examine postnups more skeptically for fairness and informed consent than they do prenups.

Postnuptial agreements make sense in a specific set of circumstances: a client is about to receive a significant inheritance or liquidity event and wants to clarify its treatment; a business is approaching a sale or recapitalization; a prior-relationship child's inheritance needs protection; a near-separation produced a reconciliation on written financial terms both spouses now want to formalize. In each case the agreement is drafted to meet both the formal statute and the heightened fairness standard.

A postnuptial agreement cannot be used to divide property in a way that functions as a de facto separation while the parties remain married without separation. Where the clients want a true separation agreement, we draft one under DRL § 170(6) instead.

Fee Structure

Flat Fee, Written Scope
Before You Engage

Prenuptial and postnuptial agreement work is almost always flat-fee at Michel Law. The scope is defined, the deliverables are discrete, and open-ended hourly billing is not appropriate for a transactional engagement with a known endpoint. Fees are quoted in writing before the engagement letter is signed and reflect the complexity of the assets, the number of negotiation rounds anticipated, and whether we are drafting or reviewing. Litigation to enforce or set aside an existing agreement is billed hourly at the firm's standard rate.

This page is provided for general informational purposes only and does not constitute legal advice. The law applicable to your specific situation may differ. Please consult qualified legal counsel regarding your circumstances. Attorney Advertising. Prior results do not guarantee a similar outcome.

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