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What You Can (and Can’t) Include in a Postnuptial Agreement in New York
A postnuptial agreement can help you and your spouse align on key financial and parenting decisions while strengthening your relationship. This article explains what’s commonly included—and what should be left out—so you can create a postnup that supports your marriage now and in the future.
What Is a Postnuptial Agreement?
If you and your spouse are struggling with issues regarding your finances or other personal matters, a postnuptial agreement can be an opportunity to bring more structure and security to your relationship.
These agreements allow you to make important decisions together, including how you would handle certain matters if your marriage were to end. But what exactly can you include and what should be left out?
What You Can Include in a Postnuptial Agreement
A postnup gives you the ability to decide how you want to address issues during the marriage or in the event of divorce or death. While every couple’s needs are different, there are several common topics these agreements tend to cover.
1. Distinguishing Marital and Separate Property
In New York, marital property is defined as anything that was acquired by either you or your spouse during your marriage (regardless of title), while separate property refers to assets owned before the marriage or received individually through inheritance or gifts during the marriage. Without an agreement, the law related to divorce in New York requires that marital property be divided “equitably.” If you and your spouse cannot agree on what is equitable, a judge would need to make that decision for you. The risk is that the outcome may not reflect what you or your spouse believes is fair.
With a postnuptial agreement, you and your spouse can agree on how to treat certain assets. Some couples want to keep investments, businesses, or real estate in the name of the person who acquired them, even if those assets would legally be considered marital property. You can also decide how to divide different asset types. For instance, you may choose to split the value of real estate evenly but treat retirement accounts or business interests differently.
2. Spousal Support
If one spouse earns more or if one of you is financially dependent on the other, it is helpful to address spousal support in your postnup. You can agree on whether support will be paid in the event of divorce, how much will be paid, and for how long. You may also decide to waive support entirely. Making this decision in advance can reduce the chance of conflict and litigation later, especially since spousal support is often one of the biggest areas of disagreement during a divorce.
3. Debts
Debt can be a major source of tension in a marriage. If one of you entered the relationship with significant debt or has accumulated debt during the marriage, your postnup can clarify how that debt will be handled. For example, if one spouse incurred large gambling or credit card debts, the agreement can state whether both spouses will help pay it off or whether the responsibility will fall on the person who incurred it. You can also address how joint debts will be handled both during the marriage and afterward.
4. Children from a Previous Relationship
If either of you has children from a prior relationship and conflict has developed between you and your spouse about how marital funds are used to support them, a postnup can specify how much money will be spent on those children and whether the other spouse will receive any type of reimbursement or credit at the end of the marriage for their share of marital funds used.
5. Child Custody, Parenting Agreements, and Child Support
If you and your spouse have children together, your postnuptial agreement can address how you plan to handle parenting responsibilities in the future. You may choose to include preliminary terms for child custody, parenting schedules, and child support. These agreements can reflect your shared understanding of what is best for your children and may reduce the chance of future disputes.
While a court will review any parenting arrangements at the time of a divorce to confirm they meet your child’s needs, having these terms outlined in your postnup can serve as a useful guide. You might agree on a general division of parenting time, how holidays will be shared, or how expenses such as education or healthcare will be paid. Although not always final, these agreements can help you and your spouse approach parenting from the same page.
What You Can’t Include in a Postnuptial Agreement
In general, there are very few restrictions for what cannot be included in a postnuptial agreement in New York. The agreement cannot include anything illegal, and it cannot be used to avoid legal obligations, such as a parent’s responsibility to provide adequate support for a child.
Postnups Are About Strengthening Your Marriage
Most importantly, a postnuptial agreement should not be used as a tool to prepare for an imminent divorce. While it can provide structure if the marriage ends, the purpose of a postnup is to support your relationship and address the concerns of each party so that you and your spouse feel more secure moving forward. Even if you believe a divorce could happen in the future, a postnup can still play a helpful role in maintaining stability during the marriage.
Working Together Toward a Stronger Future
A postnuptial agreement can provide structure around finances, responsibilities, and expectations within your marriage. It allows you and your spouse to make thoughtful decisions together and reduce the likelihood of future conflict. Putting these agreements in place does not mean you are planning for the worst. It simply gives you both a clear framework to support your relationship going forward.
At Vacca Family Law Group, we work with individuals and couples who want to approach their future with intention. If you are interested in creating or reviewing a postnuptial agreement, contact us today for your free introductory call.
Vacca Family Law Group is located at One Grand Central Place, 60 E. 42nd St., Suite 700, New York, NY 10165.
Andrea Vacca is a Collaborative Divorce Attorney and Mediator with more than 30 years of legal experience. A former President of the New York Association of Collaborative Professionals, she is a member of numerous family law and dispute resolution organizations, including the International Academy of Collaborative Professionals, the NYS Council on Divorce Mediation, and the Family and Divorce Mediation Council of Greater New York. Andrea is also the host of A Better Divorce Podcast, which offers expert insights to help individuals approach divorce with less conflict and more intention.