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Postnuptial agreements are agreements two parties enter into during a marriage to primarily resolve the economic consequences of a divorce. Postnuptial agreements must be entered willingly by both parties, who are informed that each party should, but not required, to be represented by separate counsel, and each party must disclose their financial and property assets to each other prior to entering into the postnuptial agreement. The court will scrutinize the procedure the postnuptial agreement was entered into more strictly than a prenuptial agreement, because New York recognizes a special relationship between married spouses, and consider each to have a fiduciary duty to each other. The court will consider the fairness of the terms of the postnuptial agreement more heavily than a prenuptial agreement, and determine if the agreement is “too overreaching” on the part of the more-monied spouse. In addition, in contrast to the exchange (consideration) for prenuptial agreements is the marriage itself, postnuptial agreements require both parties to promise each other consideration in order for the postnuptial agreement to be valid.

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