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Not much different than a prenuptial agreement, the postnuptial agreement is a binding document in the eyes of New York laws. Designed to protect one or more parties in a marriage, postnuptial agreements have increased in popularity in the past few years. With couples looking to protect their assets in case of a divorce, separation, or death, it’s designed to allow clear parameters without question. The only difference is you sign a postnuptial agreement after the wedding rather than before.
New York law dictates how marital assets are divided in the event your marriage ends, but the courts are taking into consideration what it is being asked for in a postnuptial agreement when a couple provides one. It’s handy because both parties are able to come to an agreement as to the separation and division of assets, debts, businesses, and other property while on good terms, and it’s one way to save couples turmoil and anger when dividing assets post-separation.
Who Needs A Postnuptial Agreement?
It’s not for everyone. Just as many couples don’t sign prenuptial agreements, not all couples in New York will find they want to sign a postnuptial agreement. If one person has an inheritance to protect, if one owns a business with other people who want their business protected, and anyone else who wants control over the division of assets and debts can and should file a postnuptial agreement.
It’s recognized in the eyes of New York law only when it’s validity can be proven, which is why hiring an attorney to handle postnuptial agreements is imperative. It must be a valid document with the signatures of both parties, and the paperwork cannot be considered valid if one or both parties were dishonest regarding their personal assets when drawing up the document.
What Does A Postnuptial Agreement Protect?
One of the most beneficial reasons to sign a postnuptial agreement is to define separate properties. If you brought property of your own into the marriage, you might decide to protect it as well as your spouse’s personal property.
– Homes/property owned prior to a marriage
– Martial property
– Maintenance – specifically when one parent no longer works in favor of raising the kids
– Pre-marital debts
– Child support
– Child custody
– Child visitation
– Alimony and other cash payments
The essence of a postnuptial agreement is not to foreshadow an impending divorce. It’s merely a document couples sign to protect themselves, their businesses, and even their kids in the event the worst happens. When this agreement is created during marriage, couples are more generous and fair. They’re more willing to make the correct and fair decisions, and it can help speed up the process of divorce if it ever comes to that.
Filing a postnuptial agreement is easy when you call an attorney who specializes in this kind of paperwork. An attorney knows what must be covered, what must be addressed, and how you can determine who gets what and when. It’s an easy way to help you figure out how to protect both parties and any current or future children you have. This legally binding document can save you a lot of future turmoil in a difficult situation.
The provisions for a postnuptial agreement is outlined in New York DRL 236B (3).
A postnuptial agreement is a written contract between a married couple. The agreement is the same as a prenuptial agreement made prior to the marriage ceremony taking place. A postnuptial contract outlines what will happen if a divorce occurs. It can also outline what will happen to property and assets after a spouse dies.
Why is a Postnuptial Agreement Important in New York?
Married couples consider a prenuptial agreement for many reasons. For instance, a spouse may have cheated. Instead of seeking a divorce, the couple may remain together, but create a postnuptial agreement. The agreement may have favorable terms for the spouse who was cheated on to show the cheating spouse is serious about wanting to remain married. However, a postnuptial agreement cannot be unfair or unequal. That would make it invalid.
Another reason for a postnuptial agreement is to protect property and assets. Sometimes one spouse may have property they want to keep separate like an inheritance or business. They may want the postnuptial agreement to keep property in their name.
What Issues are Resolved in a Postnuptial Agreement?
A postnuptial agreement addresses the same marital issues a prenuptial agreement addresses: property division, child custody and alimony. Property division discusses who receives what property. Martial property is property and assets acquired during the marriage. Separate property is assets and property a spouse had prior to marriage.
In a postnuptial agreement, each spouse can define what is considered separate and marital property. They can change the category of property too. This means a spouse can change their separate property to marital property in the agreement.
Child custody and alimony are common issues that are resolved in a postnuptial agreement. The agreement may outline who will receive alimony and for how long. Alimony is the payment one spouse makes to another during and after the divorce. It generally does not end until the spouse receiving the alimony remarries or dies.
Child custody involves who will care and financially provide for children born into the marriage. The spouses may determine each will receive joint child custody. A family court will look at the situation and the postnuptial agreement and make the final decision on what is best for the child.
If this is a second or third marriage, the postnuptial agreement can address any children born prior to the marriage. For instance, a spouse may determine if they are willing to pay financial support for their stepchild if there is a divorce. The spouses can also define which property will go to their children from a prior marriage.
A Postnuptial Agreement Must be Enforceable in New York
A New York divorce court only considers valid postnuptial agreements. A postnuptial agreement that is invalid is one where the following circumstances occurred:
• Spouses had the same attorney. It is prohibited for spouses to have the same attorney representing them in a postnuptial agreement.
• One spouse did not fully disclose all their assets and property. A postnuptial agreement requires full disclosure and honest about money, property and debts each spouse has.
• One spouse forces or coerces the other into the prenuptial agreement. It is against the law for one spouse to force their spouse to create, sign or agreement to a postnuptial agreement.
• One spouse receives more benefit from the postnuptial agreement. For example, one spouse receives everything in a divorce and the other receives nothing is an example of an unfair postnuptial agreement.
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