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Negotiating Postnuptial Agreements: A Guide for Affluent Couples

By Michael DiFalco

Prenuptial contracts are not the only opportunity for spouses to protect their personal assets; postnuptial (postnup) agreements are contracts that are created after a couple marries, and they may include an outline of asset ownership in the case of divorce alongside the responsibilities of each spouse during their marriage. 

Post-marital contracts do not include issues regarding child support or child custody, though; those issues must adhere to New York State laws and decisions of the court. All agreements in a postnup must be within the boundaries of New York divorce and property distribution laws. 

Issues Addressed in a Postnuptial Agreement

There are many reasons why a couple might decide to sign a contract after they have married. Some of the most common issues addressed in a postnup include the following:

  • How the couple will divide assets should they divorce
  • Protecting inheritance
  • Assigning business ownership
  • Providing for a stay-at-home spouse
  • Knowing what will happen to assets in the event one spouse dies
  • Establishing spousal rights

Striking an agreement on how assets will be handled if divorce occurs saves both parties time and money if divorce should happen. 

In some cases, couples sign a postnup in an effort to salvage their relationship. For example, if one spouse has been unfaithful, a post-marital contract that favors the faithful spouse could be a deterrent to future infidelity. 

Negotiating a Postnuptial Agreement

The best tip for creating a postnup that protects the interests of both parties is to consult with a family law attorney, as post-marital contracts cannot contradict New York law. 

In order to be fully enforceable, agreements must meet basic elements such as:

  • Being in writing; oral agreements won’t be enforced
  • Both parties voluntarily sign the agreement
  • Being fair, not one-sided or unjust
  • Including fair disclosure of all assets and relevant information 

Developing the agreement with the guidance of an attorney with experience in postnups will help avoid future complications. 

Keeping the Relationship Civil

Going into the process as partners — not as enemies — keeps the focus where it should be, not on personal issues, and it ensures negotiation powers are at their highest. To that end, introducing the idea of a postnup early after marriage is ideal as a way to protect yourself, your assets, your family’s assets, and your relationship. Doing so gives both parties time to consider the positives of a postnuptial contract and to seek legal counsel independently. 

The biggest negotiating mistake is to unexpectedly spring a postnup on your partner or apply pressure to sign the contract. Completing a postnup can take time; gathering all of the necessary data and reviewing contract terms is a lengthy process, especially when one or both spouses have many assets to consider. 

Keep in mind that not all properties will be divided equally. The New York Equitable Distribution Law assures that in the case of divorce, your shared property will be divided equitably, and that doesn’t always mean a 50/50 split. If you and your spouse put fairness first, you will have an easier time negotiating successfully. 

Turn to the Experts in Family Law

Financial circumstances can change many times in a long marriage, and a postnuptial agreement needs to reflect the possibility of potential change. One spouse may open a business; one may stop working; the needs of any existing or future children must also be considered. The most effective way to create a document that anticipates change is to meet with an attorney who is experienced in family law. 

Both parties in a pre-/postnup need independent legal representation. Aiello & DiFalco Family Law Attorneys in Garden City, NY, can help you develop a postnuptial contract that protects your rights and assets no matter the circumstances.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.