Prenuptial and postnuptial agreements are very similar. Both are written agreements that settle financial and other issues that can come up in the case of a divorce, separation, or other marriage dissolution. These issues include things like spousal maintenance and property division.
The big difference between prenuptial and postnuptial agreements is when they were executed. Prenuptial agreements happen before a couple get married, while postnuptial agreements come after the marriage. Both options, however, are worthy of your consideration if you are worried about what could happen in the case of a divorce or if you or your spouse dies, or just want to make things more certain if such a thing should ever happen.
Postnuptial Agreements Provide More Control Over What Happens
New York already has laws that dictate what will happen if your marriage dissolves. The procedure is set out in New York’s Family Code, which also directs family courts how to resolve specific issues, and what factors to consider when making certain decisions.
A valid postnuptial agreement trumps these considerations. In this way, you and your spouse can get control over what happens in the event of a marriage dissolution, and set rules for what will happen that make more sense to your circumstances.
Validity of a Postnuptial Agreement
Unfortunately, history has shown that postnuptial agreements can be abused. Because of this, family courts in New York have adopted rules that they use to determine when a postnuptial agreement is valid.
One of these rules is for the postnuptial agreement to be signed and acknowledged contemporaneously. This makes it a requirement for the written contract to be signed in a formal circumstance, just like the deed for a house.
Another of these rules is for the postnuptial agreement to protect not just one, but both spouses that enter into it. If the agreement only protects one spouse, then courts will become suspicious that it is too fully one-sided, and make them doubt why the unprotected spouse would agree to the contract.
Still another of these rules is for both spouses to fully report their assets if they are agreeing to property division in the postnuptial agreement. This requires both sides to fully disclose their property, preventing them from hiding what they own to induce the other party into signing a binding agreement without having all of the facts.
Someone in a divorce proceeding often challenges the validity of postnuptial agreements, especially if they leave one spouse less protected than the other. Having a separate family law attorney represent each spouse is a good way to minimize the likelihood of such a challenge succeeding because it shows that each side was prepared and able to argue for their interests in the agreement. If such a challenge does succeed, a postnuptial agreement will be found invalid and will not be enforced. If this happens, New York’s family law will step back into the picture and control how things happen in the divorce.
What Can Be Covered By a Postnuptial Agreement
Postnuptial agreements can cover most of the issues that come up during a divorce proceeding.
One of the most common aspects of a postnuptial agreement is defining a process for property division, in the event of the dissolution of the marriage. This includes categorizing certain pieces of property as marital or separate, and how the marital will be divided between the two of you.
The distinction between marital and separate property is crucial in this regard. Marital property is the set of assets that were collected by you and your spouse during your marriage. Therefore, it gets split evenly in the event of a divorce. Separate property, on the other hand, is what someone brought into the marriage. Because it was already owned before the marriage, if it does not get commingled, then it stays with that person after a divorce. Importantly, this cannot only include assets, but also debt, as well.
Another common element of a postnuptial agreement is establishing spousal maintenance in the case of a divorce. Spousal maintenance, also known as alimony, is how much one spouse will pay to the other following the separation.
Discuss Postnuptial Agreements With a Seasoned Syracuse Family Attorney
A valid postnuptial agreement can do wonders for your own interests during a marriage. Additionally, the certainty that it offers to both you and your spouse can strengthen your marriage. If you are interested in establishing a postnuptial agreement with your spouse, contact the Bombardo Law Office, P.C. online or call (315) 488-5544 for a free consultation.