Before ‘I Do’, and After: Why Prenups and Postnups Matter

“An ounce of prevention is worth a pound of cure.” — Benjamin Franklin

In a time when individuals are increasingly mindful of financial planning and personal autonomy, prenuptial and postnuptial agreements have become essential tools for navigating marriage with clarity and intention. In New York, where complex laws govern equitable distribution, spousal support, and inheritance rights, these agreements offer a way for spouses to define their own guidelines and expectations, rather than leaving critical decisions solely in the hands of the courts. Whether entered into before or during marriage, these contracts allow couples to set financial boundaries, protect family assets, and establish guidelines that will govern not only in the event of divorce, but also upon the death of a spouse.

In the Jewish world, prenuptial agreements have become common in order to establish and protect the parties when it comes to ensuring that there is religious divorce along with a civil divorce. This too is important and can be taken care of before or during a marriage.

The best time to structure financial expectations preparing for a potential dissolution of the marriage, or contract around laws that dictate rights upon divorce, or the death of a spouse, is before marriage, through a prenuptial agreement. A prenuptial agreement, or “prenup,” is a legal contract couples sign before getting married that can outline how assets will be protected and divided in the event of divorce or death, and can also cover other financial matters and obligations between the couple. Prenups can address spousal support (including waivers), the classification of separate and marital property, rights of election (upon the death of a spouse), life insurance obligations, sunset clauses, and commitments to remove barriers to the other’s remarriage, such as participating in a Get ceremony, along with other provisions tailored to the couple’s specific needs.

A well-crafted prenup helps set expectations and prevent future conflicts. This isn’t to say that prenups are without downfalls and risks. It’s so important to have legal counsel discuss the risks and potential negative effects of terms in a prenup. When one party is asking to redefine definitions under the law, or asking for waivers, this can cause concern for the other future spouse.

Because prenuptial (and postnuptial) agreements can raise emotionally charged questions about trust, fairness, and long-term intentions, it’s critical for each spouse to have an honest, pragmatic lawyer, someone who can navigate the negotiation with both clarity and sensitivity. A good lawyer doesn't just “paper the deal”, they help their client understand what rights they’re potentially stifling, what protections they’re hopefully gaining, and whether the agreement reflects a truly informed and voluntary choice. Especially in New York, where courts scrutinize these agreements for fairness and procedural integrity, a lawyer’s role is not just legal but also deeply human, helping the client approach the process without fear, defensiveness, or regret.

If you're already married, a postnuptial agreement allows you to address similar issues after the marriage has taken place. Prenuptial agreements are signed before marriage, while postnuptial agreements come into play after the marriage has begun. Both agreements address critical financial matters, such as asset division and spousal support, to help prevent potential conflicts down the road. While a prenuptial agreement is typically the preferred choice before marriage, a postnuptial agreement can still offer substantial protection, although it may be more challenging to agree upon once the marriage is underway, and the level of financial disclosure necessary is different.

While prenuptial and postnuptial agreements offer couples significant flexibility to contract around New York’s Domestic Relations Law, they are not without legal boundaries. For example, parties to a prenuptial/postnuptial agreement cannot include provisions that violate public policy, such as planning for custody of unborn children, or including penalties tied to personal conduct like infidelity. Courts will not enforce terms that are unconscionable or that infringe upon certain statutory rights.

An experienced matrimonial attorney plays a critical role in ensuring that a prenuptial or postnuptial agreement is both enforceable and effective and understands not only what terms are likely to "fly" under New York law, but also which provisions risk being struck down as contrary to public policy. For this reason, a well-drafted agreement should also always include a severability clause, which allows the court to strike unenforceable provisions without invalidating the entire agreement. This ensures that even if one clause runs afoul of the law, the remaining terms can still be upheld, preserving the core intent of the parties.