In last week’s blog, we identified and discussed basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement. In this week’s post, we discuss another type of marital agreement: a postnuptial agreement and which agreement might be best suited to your specific circumstances.
In many instances when people are about to get married, the last thing they are thinking about is entering into a prenuptial agreement. Some individuals may not have the money at the time leading up to their wedding to invest in a legal agreement or may feel that negotiating what might happen in the event of the demise of their marriage is the farthest thing from romantic. Fortunately for them, they can still, after getting married, enter into a contract to determine their financial future as spouses, or in the event of a divorce, ex-spouses.
What Is A Postnuptial Agreement?
As we previously stated, the New York Domestic Relations Law provides that marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). Unlike a prenuptial agreement, which is entered into before the marriage, a postnuptial agreement is entered into after the parties get married. Aside from this fact, postnuptial agreements are essentially the same as a prenuptial agreement and parties are able to contemplate the same terms in a postnuptial agreement as they can in a prenuptial agreement.
While a postnuptial agreement is entered into after marriage, it is not an agreement entered into in contemplation of a divorce or even during a divorce proceeding. Instead, parties will enter into a postnuptial agreement when they intend to remain married and simply want to resolve any future issues.
One question you may be asking is “why would I want to enter into a postnuptial agreement?” Well, there are many reasons. A postnuptial agreement, like a prenuptial agreement, allows you and your spouse to take control over the distribution and division of your assets and takes that control away from the courts in the event of a divorce or even the death of a spouse.
What Are The Basic Requirements For A Postnuptial Agreement?
Like a prenuptial agreement, a postnuptial agreement must be in writing, must be signed by the parties, and must be acknowledged before a notary public. Courts will not uphold an oral postnuptial (or prenuptial) agreement.
Another important aspect of a postnuptial agreement is full financial disclosure of assets to the other party. Basically, both spouses are required to disclose to each other all the money and assets they each currently possess (both separate property and marital property). The spouses then can make informed decisions about the terms of the agreement with respect to those assets.
Further, it is critical that both parties obtain their own independent counsel when negotiating the terms of a postnuptial (and prenuptial) agreement. It is important that each spouse can receive independent legal counsel to advise them of their individual rights under the law and to ensure that their best interests are being served by the terms of the agreement.
Which Agreement Should I Enter Into?
Having now been educated in the difference between prenuptial and postnuptial agreements, you may be wondering, which is the right decision to make for your relationship. If you are entering into a marriage with significant assets to protect and the likelihood of earning significant income during your marriage, you should enter into a prenuptial agreement. This is especially so because things get much murkier once you are married, with assets being commingled and income earned during the marriage being possibly added to separate property assets owned before the marriage. After marriage, items that may have had a separate property component may no longer be categorized as separate property and may be subject to an equal distribution between spouses. Understanding this, postnuptial agreements may be better suited to a situation where financial circumstances have significantly changed since the date of the marriage or in a situation where one party or the other wants to set the framework for a quick and expedient departure from the marriage without the stress of protracted multi-year litigation.
Any person contemplating entering into a postnuptial agreement or seeking advice on how a postnuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Marissa J. Pullano or Samantha Guido at 516-746-8000 or via email at firstname.lastname@example.org or email@example.com.