Matrimonial and Family Law Blog

Tuesday, June 20, 2017

Should My Spouse and I Consider a Postnuptial Agreement?

Postnuptial agreements (postnups) are gaining popularity in the country. These agreements are similar to prenuptial agreements, except that they are signed after getting married rather than before.

In a postnup agreement, two spouses disclose all their property and then agree on each other’s responsibilities in the course of the marriage and after divorce or the death of one spouse.

Are you and your spouse considering a postnup? Talk to a New York family law lawyer to understand how to go about drafting this important agreement.

Why You and Your Spouse Should Consider A Postnup

Postnups are becoming popular because they address several issues including:

  1. Defining Separate Property
    Property owned by either spouse before marriage is considered separate property. For example, a house that one spouse owned before marriage or an inheritance received before marriage. 
    A postnup can be a tool to clarify separate property. This way, both you and your spouse are clear as to which property is separate. Provided separate property is not combined with marital property, it will continue to belong to one spouse solely. 
  2. Defining Marital Property 
    While the law defines marital property as any property acquired by a couple in the course of the marriage, you and your spouse can agree to treat certain property as marital property. This means you can include property that is ideally separate as part of marital property.  
  3. Define Marital Debt 
    Just like property, a postnup can clarify debts owed by either spouse separately. In the event of divorce, those debts stay with that spouse.
  4. Maintenance 
    You and your spouse can agree on maintenance payable to either spouse during the marriage or even after divorce. This is very important especially where one spouse quits a job to take care of the children or support the other spouse while they attend school. 
  5. Children From A Previous Marriage 
    If one spouse has children from a previous marriage and the other spouse does not adopt them, a postnup can help provide support for them in the event of a divorce. 
  6. Establish Penalties For Wrongs
    In some instances, postnups can provide for protections against the wrong-doings of one partner. For example, where one partner has a gambling problem, the agreement can provide that property be transferred to the wronged spouse as protection from future betrayals or in the event of betrayal. These provisions are very common in postnups signed by couples recovering from financial breach or infidelity. 

Signing a postnup does not necessarily mean you and your spouse do not trust each other or that either of you doesn’t believe your marriage will last. Quite the contrary. Some couples have found that signing such agreements actually reduced conflicts and strengthened their marriages.

If either one of you chooses to open a business and would like to keep it separate, a postnup will do just that. If both of you wish to avoid future financial conflicts (the leading cause of divorce in the country) a postnup will help do that. There might even be estate planning benefits to signing a postnup.

Think of it as travel insurance. Getting it does not mean you won’t enjoy your vacation.

In the unfortunate event that you do get divorced, a postnup will make the process much easier, especially with regard to the distribution of property.

With that said, there are a number of things postnups cannot do.

What Postnups Cannot Do

  1. Allocate Child Custody
    Postnups cannot determine custody after divorce. It is up to the courts to determine custody according to the child’s best interests. 
  2. Determine Child Support 
    A postnup cannot determine support payable after divorce. 
  3. Determining Marital Behavior 
    For example, a postnup cannot be used to assign chores to one spouse or assign certain household roles to either spouse.

 There are rules for creating a valid postnup. If not followed, a postnup can be challenged in court and even rendered invalid. It can be frustrating to go through all the work of drafting and signing a postnup only to have it invalidated and declared unenforceable. Do not risk this. Talk to a New York divorce attorney before you or your spouse sign a postnuptial agreement.  Contact us today for a consultation at 516-228-9181.


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