At Aiello & DiFalco, we advise clients on prenuptial and postnuptial agreements. Many people are familiar with prenuptial agreements negotiated before a couple marries, but not many are familiar with postnuptial agreements entered after the couple is already married.
A postnuptial agreement is essential for protecting your family, finances, and business interests. When you meet with us, we will take the time to understand your financial circumstances and develop a postnuptial agreement that is fair and equitable. Contact our office today for a consultation. Our firm represents clients throughout Long Island and New York City.
How a Postnuptial Differs From a Prenuptial Agreement
A postnuptial agreement is similar to a prenup in that it determines the division of marital property if the couple gets divorced. The main difference is that the couple enters a postnuptial agreement after the marriage.
Postnuptial agreements are not entirely speculative. Often there are assets that were acquired during the marriage. Frequently, postnuptial agreements are proposed when a married couple is experiencing difficulties but does not want to separate or divorce. That means a postnuptial agreement is there to protect the parties or address financial issues while the parties are trying to work through their relationship issues.
Sometimes postnuptial agreements are used to redefine the terms of a prior prenuptial agreement or to otherwise update the financial and economic circumstances of the parties, for example where one party receives a significant inheritance or an interest in a family business during the marriage.
What Issues Do Postnuptial Agreements Address?
In a postnuptial agreement, the spouses disclose all the money and property they currently own, both separate and marital. The agreement clarifies:
- The division of marital property in the event of divorce or death of one or both parties
- Redefining or reestablishing assets as marital or separate based on the parties’ intentions
- The rights and responsibilities of both parties during the marriage including potential support and other contributions towards marital expenses
New York follows the rules of equitable distribution, meaning that the division of marital property must be fair to both parties. However, courts will recognize a valid postnuptial agreement that differs from state law, which gives the couple control of their property and assets. Postnuptial agreements can address the following issues.
Defining Separate Property
Property and assets each spouse brings to the marriage are considered separate property, including:
- Property acquired by either spouse before marriage, such as a house
- Property that was received individually as an inheritance or gift
- Compensation for personal injuries or another legal settlement
A postnuptial agreement should specifically identify which property is separate and can be used to expand or limit the definition.
Defining Marital Property
A postnuptial agreement will also identify property the couple wants to consider marital property, even if it is separate property under state law. A postnuptial agreement, for example, could be used to establish a premarital home as a marital asset to ensure that the party who is not on the title feels financially secure.
Establishing Pre-Marriage Debt
If the spouses bring substantial debt to the marriage, a postnuptial agreement can specify that each spouse will be responsible for paying their debt.
A postnuptial agreement can establish whether one spouse will pay spousal maintenance to the other and the amount and duration of support payments. On the other hand, the agreement can state that there will be no maintenance if the couple decides to divorce.
Child Custody/Child Support
A postnuptial agreement cannot definitively address child custody or child support without some potential for future modifications or review by the court. Custody and support arrangements must be reviewed and approved by the court. The court will determine whether the postnuptial agreement is in the child’s best interests. However, unlike a prenuptial agreement where children are not yet born typically, a postnuptial agreement may, if drafted properly with the right disclosures, cover some of the issues of child custody and child support.
Are Postnuptial Agreements Enforceable?
A postnuptial agreement is presumed to be valid and enforceable as long as it is in writing and was properly acknowledged (signed before a notary with the proper acknowledgement language). Not any signed agreement or even a notarized agreement will be sufficient to operate as a postnuptial agreement.
However, a spouse can challenge the validity of a postnuptial agreement for the following reasons:
- Fraud – If either spouse fails to disclose or conceals the assets, the court may not enforce the agreement.
- Coercion/duress – If one spouse uses pressure to get the other to sign the agreement or does not give them enough time to consider it, the court may not enforce the postnuptial agreement.
- Unfair and inequitable (unconscionability) – If the postnuptial agreement favors one spouse unfairly or leaves the other spouse with nothing, or the process in which it was negotiated was truly unjust, the court may not enforce the postnuptial agreement.
By working with a skilled postnuptial agreement attorney, you can create an agreement that is fair, valid, and enforceable.
Who Should Make a Postnuptial Agreement?
A postnuptial agreement can be beneficial if:
- You are considering divorce or separation, but you and your spouse want to consider reconciling
- You entered a prenup but need to change the terms
- You want to ensure children from a previous relationship are entitled to your assets
- You or your spouse stopped working to raise children
- You have accumulated substantial wealth after the marriage, particularly through inheritance or a family business
- Your spouse has considerable debt and you do not want to be responsible for repayment
Regardless of why you need a postnuptial agreement, it takes a skilled family law attorney to protect your interests and create one that is fair to both parties and properly complies with the relevant laws.
Contact Our Experienced Garden City Postnuptial Agreements Attorney
At Aiello & DiFalco, we have an impeccable reputation for adhering to the highest ethical standards and professional excellence. Contact our Garden City office today if you need assistance creating a postnuptial agreement.