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.
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.
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.
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.
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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