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New York Postnuptial Agreement

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New York Postnuptial Agreement

Updated January 23, 2023

A New York postnuptial agreement is a contract that married couples use to establish how to assign certain property rights should their marriage end in divorce or death. Postnuptial agreements are useful because, like prenuptial agreements, they take precedence over the state’s default rules for dividing assets in a divorce and enable couples to devise plans that fit their situation.

However, unlike prenuptial agreements, which are signed before a couple gets married, postnuptial agreements are signed by people who are already married. In New York, this can mean they face additional scrutiny to be enforced.

Signing Requirements (Hershkowitz v. Levy (2021)) – Both spouses must sign the agreement.


Validity: In determining whether a postnuptial agreement is invalid, courts may look at the terms of the agreement to see if there is overreaching. Petracca v. Petracca (2012).

Enforceability: An agreement between spouses that is fair on its face will be enforced according to its terms unless there is proof of unconscionability, fraud, duress, overreaching, or other inequitable conduct. McKenna v. McKenna (2014).

Scrutiny: Given the fiduciary relationship between spouses, the courts have more closely scrutinized postnuptial agreements than ordinary contracts. Hershkowitz v. Levy (2021).

Burden of Proof: A spouse seeking to set aside a postnuptial agreement is initially responsible for establishing inequality. When this initial burden is satisfied, a proponent of a postnuptial agreement must disprove fraud or overreaching. Petracca v. Petracca (2012).
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