Did you know there was such a thing as a postnuptial agreement? In this post we delve into this widely unknown legal agreement, its limitations, and the benefits it can provide to married couples in New York.
Many people do not know about the postnuptial agreement, or how it differs from the popular prenuptial agreement. Many of our clients are under the misconception that they are given the same protections with a postnuptial as they are with a prenuptial agreement. But there are differences. A prenuptial agreement protects all assets an individual had prior to entering a marriage. A postnuptial agreement covers all the disclosed financial assets two spouses own, including separate and marital property. It then defines the rights each spouse has during the marriage and how assets will be divided in the event of divorce or death.
And while a postnuptial agreement is a sound form of legal protection for many couples, it is not equal to prenuptial agreements. The validity of postnuptial agreements is sometimes hard to enforce in court during a divorce process in New York. Once two people enter into a marriage, they have a legal and ethical duty to each other, and this can make for a more difficult process when it comes to divvying up assets.
However, the postnuptial agreement does afford certain rights to each spouse and gives them control when it comes to dividing assets. Normally, New York law defines how assets are divided during a divorce proceeding. But courts can recognize a valid postnuptial agreement that divides this property differently that State would. One important issue it covers is defining separate property. Each spouse brings his or her property into a marriage, which can be kept separate from assets they acquire during the marriage. A postnuptial agreement should delineate separate property, and each spouse needs to keep this property in his or her name only for the duration of the marriage.
Another advantage to the postnuptial agreement is setting up spousal support and maintenance. The agreement can help determine what kind of support is paid to the other spouse during or after the divorce. It can also establish that no support will be paid should the couple decide to divorce, should both parties agree. Postnuptial agreements can also cover child support, custody, and pre-marriage debt, so they certainly have many advantages for couples that have already married and decide to set up their rights and responsibilities after the fact.
All in all, we recommend prenuptial agreements for couples as a sound course of action, but the postnuptial agreement is an important legal proceeding for spouses to know. You and your (future or current) spouse should each speak with an experienced family law attorney in New York about these agreements, and the important benefits they can provide in the event of divorce.