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New York Postnuptial Agreement Frequently Asked Questions

Q. What is a postnuptial agreement?

A. A postnuptial agreement under the laws of New York is really the same thing as a prenuptial agreement, except it is signed after the couple marry. Both parties must be completely transparent about all their assets and debts. The agreement can cover rights and responsibilities during the marriage and division of property and spousal maintenance issues if the couple gets divorced.

Q. Why would I need a postnuptial agreement?

A. 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.
Q. What can be covered in a postnuptial agreement?

A. 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.
Q. Are postnuptial agreements enforceable in New York?

A. Postnuptial agreements are enforceable, but one of the spouses could challenge it for cause. Some reasons that a judge might disregard a postnuptial agreement is because of fraud, coercion, inequity in its terms and unfairness because one of the spouses was not represented by an attorney when the agreement was created and executed.

Q. What are the requirements for a postnuptial agreement in New York?

A. 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.
Q. Do both my spouse and I need an attorney if we want a postnuptial agreement?

A. 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.

Q. If we do not have a prenuptial or postnuptial agreement, how will our property be distributed if we get divorced?

A. 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.

Q. Will a postnuptial agreement affect who gets my property when I die?

A. 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.

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