Founder
Most people have heard of prenuptial agreements, which couples sign before marriage to determine how to resolve financial issues if they get divorced. However, couples can also create and sign similar agreements after marriage. A married couple can create a postnuptial agreement at any point during their union, including in contemplation of a divorce in the near future. When considering a postnuptial agreement, you can best protect your rights and interests by consulting a Garden City family law attorney to review your legal options.
Typical Components of a Postnuptial Agreement
A valid postnuptial agreement in New York typically contains several main components. A postnuptial agreement can cover:
- Disclosure of Assets – Spouses should disclose all of their assets. A couple can use the postnuptial agreement to designate specific assets as marital property subject to division in divorce or separate property that a spouse may retain after divorce. Although property that a spouse brings to a marriage or specific assets acquired during the marriage (such as inheritances) generally constitute separate property, it can become marital property if combined with other property during the marriage.
- Addressing Premarital Debt – When one spouse brings substantial debt to the marriage, a postnuptial agreement can clarify that the debtor spouse remains solely liable for the debt and that the parties will not divide the debt in a divorce.
- Spousal Maintenance or Alimony – Postnuptial agreements can specifically award alimony to one spouse. For example, a spouse who gives up their career to become a homemaker or caregiver can use a postnuptial agreement to ensure they receive financial support after a divorce.
- Support for Children of a Prior Relationship – When a spouse has children from another relationship, they can use a postnuptial agreement to ensure their support if their current marriage fails.
Establishing a Valid Postnuptial Agreement
A couple must put their postnuptial agreement in writing, and both spouses must sign the written document. A valid postnuptial agreement must result from a knowing, voluntary agreement between a married couple. Courts will not enforce a postnuptial agreement that arises from coercion, duress, or undue influence. A valid postnuptial agreement also requires complete and accurate financial disclosure from both spouses. A spouse who conceals assets may lose the right to enforce the postnuptial agreement in a divorce proceeding.
A postnuptial agreement should also have fair and reasonable terms for both parties. A court may decline to enforce a one-sided postnuptial agreement, especially if it bears other hallmarks of coercion, undue influence, or a lack of good-faith bargaining.
Finally, a valid postnuptial agreement requires both spouses to have independent legal counsel. A couple may not “share” an attorney to draft their postnuptial agreement, as that attorney would have a conflict of interest due to the spouses’ adverse positions. One spouse can pay the legal fees for the other spouse’s independent counsel, as professional rules of conduct clearly state that counsel owes a fiduciary duty to their client, not the spouse paying their bills.
Modifying or Revoking a Postnuptial Agreement
A couple can mutually agree to modify or revoke their postnuptial agreement during marriage. Couples may modify a postnuptial agreement in response to changed circumstances, such as the birth of children or substantial changes to the couple’s finances. Any document modifying or revoking a postnuptial agreement should meet the same requirements as the agreement, including full disclosure, voluntary execution, and independent legal counsel for each spouse.
In order to be binding, postnuptial agreements must be notarized and acknowledged in proper legal format.
Contact Our Garden City Family Law Attorney Today
Before negotiating or signing a postnuptial agreement, talk to an experienced family law attorney from The Saul Law Firm LLP to discuss your rights and options. Contact us today for a confidential consultation to learn more about how a postnuptial agreement can protect your interests.