Last Updated on
If you didn’t get a prenuptial agreement before marriage and now you’d like to get a postnuptial agreement to protect your assets, Spodek Law Group can help.
We have experienced postnuptial attorneys who can set up a postnuptial agreement that fulfills all the legal requirements. This is essential, because agreements that don’t often are ruled invalid during divorce court. The last thing you want is to spend your time on a postnuptial agreement that ends up being useless in court.
Here’s everything you need to know about postnuptial agreements in New York, along with how we can give you the best representation as we arrange your agreement.
The Purpose of the Postnuptial Agreement
If you’re familiar with the prenuptial agreement, often referred to as the prenup, then the postnuptial agreement isn’t hard to understand, because it serves the same purpose. Both agreements are contracts between you and your spouse that stipulate what will happen if you divorce. This includes what property belongs to each of you and if there will be any spousal support.
Many couples make the mistake of not getting any prenuptial or postnuptial agreement, which leaves your divorce proceedings entirely in the hands of the court. You’re much better off getting a contract that ensures your assets will stay with you should you get divorced.
The sole difference between prenuptial and postnuptial agreements is when you get them, with a prenup being an agreement you and your spouse sign before the wedding, a postnup is an agreement you both sign after.
If you didn’t get a prenup and you’re now married, then you’ll need to go the postnuptial agreement route. You’ll want an attorney to help you during this process.
Some Reasons for Getting a Postnuptial
Just as in the drafting of a prenup, in a postnuptial agreement, both parties must be completely transparent about all their assets and debts. The agreement can cover the rights and responsibilities of the spouses during the marriage, as well as division of property and spousal maintenance issues if the couple ever gets divorced.
Changes in financial circumstances, roles and relationships sometimes happen. Here are some scenarios that might prompt a couple to enter a postnuptial agreement.
- One spouse may give up their career to stay home with the children. That spouse may want to be certain their financial interests are protected in case of divorce.
- A couple makes a choice to start a business together and they need to clarify the differences among business, marital and separate assets.
- One of the spouses comes into a large inheritance. Customarily, a court would award the inheritance solely to that spouse in case of divorce. There might be a desire to distribute the inheritance differently than it would be distributed under New York law or to clarify which property is part of the inheritance so it is not intermingled with marital assets.
- A spouse incurred significant debt prior to the marriage, and the other spouse wishes to clarify they are not responsible for it.
- Some situation triggered a loss of trust in the relationship, for example, infidelity.
Legal Requirements of a Postnuptial Agreement
Your postnuptial agreement must meet all the requirements set by the state of New York, and requirements are stricter for these agreements than for other types of contracts.
First, here are the basic requirements. Your postnuptial agreement must be in writing, as the court won’t honor oral agreements. You and your spouse must sign the agreement of your own free will. Like any other contract, if there was any deception, coercion or threats involved when either you or your spouse signed, the court will throw it out. Having an attorney present helps ensure that both parties enter the agreement voluntarily.
Both spouses must sign the agreement, and if it isn’t signed correctly, that could invalidate it. A postnuptial attorney can ensure that you and your spouse sign your postnuptial agreement correctly.
Fairness and Full Disclosure
Now, let’s look at the more complex requirements – fairness and full disclosure.
Fairness sounds a bit vague, and it is, which gives the court plenty of latitude. What it means is that a postnuptial agreement can’t put one party at a significant advantage over the other, and it can’t be one party making all the concessions.
The legal concept of consideration is an important part of fairness. Consideration means that when you gain something in a contract, you also give something up. So, if something in your postnuptial agreement benefits you, you must also give something up that will benefit your spouse to make it even.
While divorce courts honor postnuptial agreements whenever possible, they won’t in agreements that are clearly one-sided. A postnuptial attorney can help with this. It’s recommended for both you and your spouse to have your own independent attorneys, that way you each have someone representing your interests.
Full disclosure means that you and your spouse must fully disclose your assets, both what you have now and what you expect to have in the future, for the agreement to be valid. If either of you doesn’t disclose something, whether through intentionally concealing it or an honest mistake, the court may not honor the agreement.
Covering Future Assets
How can you know what assets you’ll have in the future? This refers only to assets you could reasonably be expected to know about at the time you entered the postnuptial agreement. For example, if you know you will one day inherit your father’s home or a certain amount of money, you’ll need to disclose that. At Spodek Law Group, our postnuptial attorneys will go over your assets with you to make sure you get everything.
Preparing Your Postnuptial Agreement
If you didn’t get a prenup, then it’s in your best interest to set up a postnuptial agreement right away. Hopefully you never need it, but if you ever do, you’ll be glad you took the time.
Our skilled postnuptial attorneys can guide you every step of the way and make sure your agreement holds up in court. Contact Spodek Law Group and we’ll help you create a postnuptial agreement right away.