New York Postnuptial Agreements

While most of us have are generally familiar with a prenuptial agreement, the idea of a postnuptial agreement is not as widely understood. A postnuptial agreement is basically the same as a prenuptial agreement except that it is executed after the couple has married and not before. The written agreement may touch on subjects that would come up in a divorce such as issues related to property division, child custody and visitation, as well as other financial issues such as child support and spousal maintenance. The rationale is to iron out such issues during the marriage to avoid disagreements in the future. In fact, a postnuptial agreement is often executed in an effort to avoid divorce. If you are in need of a family lawyer because you are contemplating negotiating a postnuptial agreement with your spouse, it is important that you contact an experienced New York postnuptial agreements lawyer who will ensure that your rights are protected throughout the process.

So why would a couple who is already married decide to execute a postnuptial agreement when they did not bother signing a prenuptial agreement? Typically this happens when there was a significant change in the couple’s circumstances during the marriage. Examples of changes that could prompt a postnuptial agreement include:

• Change in finances. If the couple suddenly has an increase in wealth, one person receives a large inheritance, then a postnuptial agreement could clarify which property is marital property and which property is not. Similarly, if one individual in the marriage accumulates significant debt then the postnuptial agreement could state how debt is to be allocated.
• Breach of trust. If 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.

There are a variety of issues that can be negotiated and addressed in a postnuptial agreement. It is up to the couple to determine what they would like to include in the agreement. Common topics include:

• Differentiating between marital property and separate property. Under New York law the assets that each spouse acquired prior to the marriage is deemed separate property and generally not subject to equitable distribution upon the dissolution of the marriage. A postnuptial agreement should clearly identify the property that is separate property, and each party should maintain such property separately. In other words the title of the property should remain in the name of the individual.
• Defining marital property. A postnuptial agreement can also state property that you would like to be considered marital property. Some couples do this because for property that would otherwise be considered separate property.
• Spousal maintenance. In a postnuptial agreement the couple can agree on who would receive spousal maintenance during the marriage and in the event of a divorce. The agreement can specify how much and for how long.
• Debt allocation. A postnuptial agreement can clarify debt owed by each party prior to the marriage and that in the event of divorce stays with the party who created it prior to the marriage.
• Custody and visitation. While some postnuptial agreements address child custody, visitation and child support, in the event of a divorce such issues will ultimately be decided by the court.

New York recognizes the validity of postnuptial agreements. Under Domestic Relations Law §236(B)(3), postnuptial agreement are valid and enforceable as long as they are in writing, signed by both parties, and recorded. In addition, courts have stated that in order for a postnuptial agreement to be valid, both parties need to make a full financial disclosure prior to executing the agreement.

If you would like to clarify your marital financial position using a postnuptial agreement, it is important that you discuss your concerns with an experienced family lawyer. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully representing clients seeking prenuptial and postnuptial agreements, as well as representing clients in divorces and on issues related to custody, child support and spousal support. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.