What is a Postnuptual Agreement?

Many people do not know what a postnuptial agreement is and whether or not they should sign one. As a New York Divorce Lawyer located in Manhattan I must say that although I am capable of litigating divorces I find that the parties benefit from a more amicable approach to settling their marital issues. This is where a postnuptial agreement, collaborative divorce or mediation comes in handy. Many of my cases settle along these lines.

Postnuptial agreement differ from Stipulations of Settlement because they must be executed during the marriage but before a divorce action is commenced.  In essence they are the same as a Separation Agreement but do not feel as final and hence the parties might prefer them to a separation agreement. But they are just as binding. They are also similar to separation Agreements, so long as they meet the legal criteria set forth by the statute. As a Manhattan divorce lawyer, I do my best to draft Separation Agreements that are fair so that they will withstand judicial scrutiny. That said, the Agreement should satisfy the goals of the client.

In New York couples are allowed to decide how to divide their property between themselves when the law might otherwise not provide for what they are hoping to achieve so long as certain requirements are met to the satisfaction of the court. The Agreements will be enforceable if they are executed and recorded in a manner prescribed for the filing of a deed in New York. An agreement cannot be made based on fraud or duress. Lastly, the agreement should disclose all assets debt and income of the parties and the parties should obtain independent counsel who have the best interests of each party at heart. It is not advisable to have one attorney review it for both of you.

A post nuptial agreement may come in handy for many reasons. First, if you married without a prenuptial agreement this agreement could cure any financial misunderstandings or expectation the parties might have had going into the marriage. Other reasons for a postnuptial agreement is if the parties are opening up a business and one of them wishes to protect their rights in the business in the event of a divorce.

When parties marriages are faltering, postnuptial agreements have the benefit of preserving the assets of the marriage while the parties are deciding on whether or not to divorce. The agreement can also address expected inheritances, especially where comingling can be a problem. It can also address spousal support and child support so long as the rights that you would otherwise have had absent an agreement is set forth in the Agreement and that you are honest and transparent about your income assets and debts. DRL §236, Part B (5-a) requires the parties to know what they are giving up in a postnuptial agreement, so it is wise to set forth in your agreement the proper guidelines that control spousal support and child support.

In this way a postnup can differ from a prenup since a prenup typically cannot address child support and child custody especially if no children are yet born of th parties.

Pursuant to DRL Section 236 B 3 any martial agreement made before or during the marriage  in a formal writing which is “subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded” is enforceable. You can address many things in an agreement of this sort such as contracting for provisions in a will, ownership and division of property, amount and duration of temporary and final spousal maintenance or other terms and conditions of the marriage relationship so long as it follows Section 5-311 of the General Obligations Law. The parties can do this without the necessity of involving judicial intervention. They can also agree in a postnuptial agreement as to how they will characterize their property acquired during the marriage as being “separate or “marital.”

Postnuptial Agreements are particularly important when it comes to children of the marriage. Please note that although it is relevant to set forth the parties agreement as to child support and child custody the Court always has the last word on such issues. That said, it is helpful to have those issues included in a postnuptial so the Court can glean and consider the intention of the parties.

That said the parties can always agree on how the children will be raised, such as choice of religion even though this is not governed by statute rather than case law. See the case of Jabri v. Jabri, 193 A.D.2d 782, 598 N.Y.S.2d 739 (2d Dep’t 1993))

Do not, however, include terms that inherently shocking to moral conscious or these provisions will likely be struck down by the Court. .

Many of the items you wish to explore and treat in your postnuptial agreement are not found in forms you find online. Your attorneys should thus be creative in arriving at the terms they which to include. When it comes to custody, however, before sure you are focused on what is in the children’s best interests since that is paramount to the Court’s interest in enforcing your agreement.

You should also consider the fact that circumstances change. You can provide for that as well in your agreement by allowing the parties to move the Court for modification of the terms of the Agreement.

Providing for Arbitration as to property and spousal support in the event of a New York Divorce  is also a good way to resolve the issues without going to court and the Court will favor this and usually enforce arbitration decisions made with just cause. See the cases of In re Lauren S. v. Ira S., 25 A.D.3d 526, 811 NYS2d 1 (1st Dep’t 2006); Stillman v. Stillman, 55 NY2d 653, 446 NYS2d 942 (1981). But do not expect the Court to allow you to make arbitration decision over children and child support.

Postnuptial agreement differ from Stipulations of Settlement because they must be executed during the marriage but before a divorce action is commenced.  In essence they are the same as a Separation Agreement but do not feel as final and hence the parties might prefer them to a separation agreement. But they are just as binding. Postnuptial agreements often entail less acrimony so they should be considered as a tool for parties that have not made up their mind as to divorce but rather want to delineate their rights in a formal document “just in case.”

There is another important distinction which must be made between the prenuptial agreement and the postnuptial agreement. Agreements made prior to the marriage entail no fiduciary right to one another because they have no right or reason to rely upon the representations of the other party.  However, once married, this changes. Another reason they are different is that of course the parties have not yet accrued marital assets subject to equitable distribution.

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