Couples now enter marriages with more assets which also grow and become more entangled over time. While prenuptial agreements that couples enter before marriage are widely known, spouses can also enter other agreements after marriage to protect their interests if their marriage ends.
Postnuptial agreements are entered after marriage and are similar to prenuptial agreements. In these agreements, spouses disclose all of their assets including marital and separate property. They also agree on their rights and responsibilities during marriage and how their property will be divided when one or both of them die or if they ever divorce.
Without a prenuptial or postnuptial agreement, a New York court will decide property division and other matters in accordance with state laws without necessarily considering the spouses’ wishes or situation. These agreements provide couples the opportunity to decide these matters.
A postnuptial agreement can define the couple’s separate property. These are assets that each spouse brings into their marriage. If these assets remain separate from the property the spouses obtain together, it remains as separate property if the couple divorces.
But separate property often becomes intermingled with marital property which may be divided in a divorce. This occurs, for example, when cash is deposited in a joint account, or an inheritance is not kept separate in a spouse’s name.
Without a postnuptial agreement, separate property may become marital property. The couple, however, can also designate assets as marital property in their agreement.
If a spouse carried substantial debt into the marriage, this agreement may protect the other spouse by setting forth who is responsible for paying off that debt.
Postnuptial agreements may also set forth maintenance for a spouse during marriage, especially if a spouse gives up a career to raise a family. The amount of support during or after divorce may also be established.
These agreements may protect children from earlier marriages if the new spouse does not adopt them. Support can be structured for them if there is ever a divorce.
Postnuptial agreements may not cover child support or custody issues, however. New York courts must address these issues based upon the best interests of the children and the circumstances when the couple divorces.
A postnuptial agreement is unenforceable without full disclosure of assets if it is unfair and unequitable, or it was executed under coercion or duress. Both spouses must execute and acknowledge the agreement under legal formalities.
Both spouses should have their own attorney to assure that it is fair. Attorneys can assist spouses with drafting an agreement that meets their needs.