A postnuptial agreement, commonly called a postnup, can be a powerful tool for married couples seeking financial clarity or protection after marriage (reminder, a prenuptial agreement is entered into prior to marriage; this post is focused on postnuptial agreements, which are entered into after your wedding day). But these agreements aren’t always held up in court. In fact, in our litigation practice at The Glennon Law Firm, P.C., we often see postnups challenged, and sometimes thrown out entirely, when they were not properly structured, negotiated, documented, or executed.
If you’re a business owner, executive, or professional with significant income or assets, understanding the risks and limits of a postnup is very important; whether you’re considering creating one now or thinking about relying on one in a future divorce (yes, if you are unsure of an agreement’s validity, you can update or replace your prenuptial (before marriage) or postnuptial agreement after you’re married, even today).
What Is a Postnuptial Agreement?
A postnuptial agreement is a contract between spouses, entered into after marriage, that defines how assets, income, and financial obligations will be handled if the marriage ends by divorce.
These agreements can:
- Define separate vs. marital property
- Protect business interests or inherited wealth
- Address spousal support or maintenance
- Allocate responsibility for debts or liabilities
- Limit or exclude rights to future assets
Postnups can be especially valuable when one spouse has grown a business during the marriage or wants to clarify future expectations after a rocky period in the relationship.
But Are They Enforceable?
In New York, the answer is: yes, but…. while postnuptial agreements are legally permitted, courts scrutinize them more closely than prenups or standard contracts. That’s because the parties are already in a legally binding relationship, and the risk of coercion, undue pressure, or imbalance of power is higher when entering into a postnup.
Courts may refuse to enforce a postnup if:
- It was signed under duress or emotional pressure;
- One spouse didn’t have full financial disclosure;
- The agreement was extremely one-sided or “unconscionable”; and/or
- There was no meaningful opportunity to seek independent legal advice
Even if both spouses willingly signed the agreement, the court could still invalidate it if the process was flawed or the terms are considered to be too harsh.
When Postnups Fall Apart in Court
We’ve seen postnups challenged for a variety of reasons:
- One spouse signed after being told the marriage would end without it and was given no time or review it or to allow for a lawyer to review it.
- The agreement gave everything to one spouse and left the other with no assets, no support, and no explanation.
- A business owner used a postnup to shield future growth of a company from equitable distribution, but didn’t disclose the company’s real value at the time.
In each of these situations, courts questioned whether the agreement was fair, informed, and freely negotiated.
How to Strengthen a Postnup
If you want your postnup to hold up, treat it like any other major legal contract, one that could be tested under pressure later on. Suggestions may include:
- Full disclosure: Both spouses must fully disclose assets, liabilities, income, and business interests in writing.
- Independent counsel: Each spouse should have their own attorney review and advise them on the agreement.
- No pressure: The agreement should be discussed and signed under calm conditions, not in the middle of an emotional or financial crisis, or immediately after infidelity is discovered
- Balanced terms: The agreement should reflect some level of fairness or articulate a reasonable basis for its terms, total lopsidedness can trigger court scrutiny, even if technically signed freely.
- Documented process: Keep a clean paper trail of negotiations, communications, and revisions to show the court it was transparent and professional.
Postnups and Divorce Litigation
If you’re in the middle of a divorce and your spouse challenges your postnup, it’s critical to prepare a legal and factual defense of how the agreement was created. This includes showing:
- The agreement’s structure was fair and understood
- Both parties had equal opportunity to negotiate, edit, and/or object
- There were no hidden facts or withheld information
Likewise, if you feel you were pressured into signing a postnup that now puts you at a significant financial disadvantage, you may have legal grounds to challenge it, and restore your rights under New York’s equitable distribution laws.
Conclusion
Postnups can offer clarity, protection, and peace of mind, but only when done properly. If you’re relying on a postnup to shield your business or protect your assets, you need to be sure it can withstand legal scrutiny. And if you’re facing divorce and a postnup is in play, you need a clear strategy to protect your rights.
At The Glennon Law Firm, P.C., we help high-income professionals and business owners navigate complex divorce matters involving postnuptial agreements, asset protection, and financial risk. If you have a postnup, or need one (or a new one), please contact us to schedule a confidential consultation with our team. You may learn more about us and how we operate by visiting these pages: About Us and What Sets Us Apart.
For more related information, please see these related blog posts:
- Navigating Post-Nuptial Agreements: What Business Owners and Executive Professionals Need to Know
- Protecting Your Business: Key Considerations for including it in a Prenuptial Agreement
This post is not intended as legal advice, but rather for educational purposes.