New York Postnuptial Agreement Frequently Asked Questions

A postnuptial agreement is marital agreement that is executed after the couple is married. It is distinguishable from a prenuptial agreement which is entered into before the couple marries. The written agreement may touch on subjects that would come up in the event the couple divorces such as property division, child custody and visitation, child support, and spousal maintenance.

Financial circumstances, roles and relationships change, and sometimes these changes mean it makes sense to execute a postnuptial agreement. Here are some examples:

• One spouse gives up their career to stay home with their children and wants to be certain their financial interests are protected in case of divorce.
• A couple decides to open a business and wants to clarify the differences among business, marital and separate assets.
• A spouse comes into a large inheritance. Normally, a court would award the inheritance to that spouse in case of divorce. There may be a desire to
  • Distribute the inheritance differently than it would be distributed under New York law or
  • Clarify what property is part of the inheritance so it is not intermingled with marital assets
• One spouse incurred significant debt before the marriage, and the other spouse wants to clarify they are not responsible for it.
• There has been a loss of trust in the relationship, possibly due to infidelity.

Postnuptial agreement can cover any number of issues. Here are some of the most common.

• Defining separate property: Separate property is property that a person brings into the marriage or inherits. It belongs to them in case of divorce, unlike marital property acquired during the marriage which a court would distribute between the spouses. A postnuptial agreement can define separate property so there is no confusion about it becoming intermingled with marital property.
  For example, the wife could inherit money, normally separate property, and put it into a joint account. This would probably be considered to be marital property unless the couple agrees otherwise in a postnuptial agreement.
• Defining marital property: A postnuptial agreement can designate what is to be considered marital property. A postnuptial agreement can designate property to be separate or marital even if it does not follow the property categories of New York law.
  For example, if the husband brings a fully-owned house into the marriage, it would normally be considered to be separate property. A couple could agree that the house is to be designated as marital property in a postnuptial agreement.
• Spousal maintenance. A postnuptial agreement can set out whether or not spousal maintenance is to be paid in case of divorce as well as the amount and the duration of such payments.
• Clarification of debt from before the marriage. A postnuptial agreement can indicate the amount of debt each party brought into the marriage and clarify that the party who brought the debt is solely responsible for it.
• Support for children of a prior union: If one of the spouses had children before marrying their current spouse, and the current spouse does not adopt the children, the couple could still reach an agreement where a spouse agrees to provide support for the children should the couple divorce.
• Child custody, visitation and support: A couple may want to work out issues of child custody, visitation and support in a postnuptial agreement, and what they agree to will be considered by the judge. However, in this case, the postnuptial agreement is not binding on the court, because the best interests of the child are paramount.

Yes, postnuptial agreements are generally enforceable. However, they must be executed in a manner that is consistent with state law. For example, the agreement must be in writing and must be signed by both parties. Some states require that the parties provide each other with full financial disclosures, while other states require that the agreement must be consistent with state law related to inheritance, child support, and spousal support.

A postnuptial agreement must be

• In writing
• Signed by both parties
• Signed before a notary public
• Transparent. Both spouses must give full disclosure of their assets and debts.

You should both have a lawyer to be sure your interests are well represented, but also because the party who did not have a lawyer could challenge the agreement later on grounds of unfairness in a New York court, because they did not have legal counsel.

Property that you brought into the marriage or inherited is likely to be considered separate property and will go with the person who brought it into the marriage. If the parties cannot agree on the distribution of marital property at the time of divorce and there is no prior agreement, the property will be divided by “equitable distribution,” which does not mean 50-50. The judge will determine where the property goes based on a number of factors including income, age, health and more.

A postnuptial agreement does not affect property distribution after death, unless there is a clause in the agreement that indicates it should. Normally, property is distributed after death according to a person’s will or by the terms of New York law if they don’t have a will.

Generally, couples choose to enter postnuptial agreements because of a change in circumstances. If the couple had a sudden increase in wealth, a postnuptial agreement can clarify how that wealth is allocated. Similarly, if one individual in the marriage accumulates significant debt then the postnuptial agreement could state how debt is to be allocated. Another common reason for a postnuptial agreement is where there was some sort of significant breach of trust in the marriage such as infidelity or a financial breach of trust. In an effort to save the marriage the couple may decide to execute a postnuptial agreement.