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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