POST NUPTIAL AGREEMENT
A postnuptial agreement is basically the same as a prenuptial agreement, except that you and your spouse enter into it after you and your spouse have already gotten married, instead of before you marry. In a postnuptial agreement, you and your spouse disclose to each other all the money and property you currently own, both separate property and marital property. Then, you set forth the rights and responsibilities each of you will have during the marriage, including how you will divide your money and property in the event of divorce or death of one or both of you.
A postnuptial agreement is valid and can be enforced as long as it protects both you and your spouse and it was entered into with a full and fair disclosure of all assets by both you and your spouse. The agreement must also be executed and acknowledged with full formality required for a property deed to be recorded.
A postnuptial agreement can address many different issues, including:
• Defining separate property- the property and assets you bring to a marriage are called separate property. As long as you keep your separate property separate from the property you and your spouse obtain together, the separate property continues to belong to you alone during and after your marriage. A postnuptial agreement should specifically identify which property is separate property of each of you. However, if you do not keep you separate property separate (in your name only) then despite the postnuptial agreement such property may later be deemed marital property and divided equally between you in the divorce.
o You received a large inheritance during your marriage, and you want to make sure it is not considered marital property. By law inheritances are separate property as long as the funds are held in the recipient’s sole name, but if there is a postnuptial agreement it should confirm the inheritance is separate property.
o You each brought an amount of cash to the marriage, which was deposited into a joint account. If you divorce later, those funds will probably be deemed marital property.
o You own a house prior to marriage, and you and your spouse then live in the house during the marriage. You want to be sure that if you divorce, the house remains your sole property. A postnuptial agreement will help you do this, but you should nevertheless have kept sole title to the house unless you wanted to make a gift to your spouse.
• Defining marital property- just as you can identify your separate property in a postnuptial agreement, you can identify property you want to be considered as marital property, even if it is actually separate property.
• Establishing maintenance- a postnuptial agreement can establish maintenance for you and your spouse during the marriage, particularly if one of you is giving up a career “to raise the kids”. Also, a postnuptial agreement can establish what kind of support you and your spouse will pay the other during or after a divorce, or establish that there will be no support in case you decide to divorce.
• Establishing support for children prior of a marriage- if you brought minor children into a marriage, and your spouse does not adopt them, a postnuptial agreement can help make sure the children are provided for if you and your spouse divorce.
• Establishing pre-marriage debut- if you or your spouse brought substantial debt to the marriage, the postnuptial agreement can state that the debt stays with that spouse.
• Child support and child custody/visitation- A postnuptial agreement cannot definitively address child support issues or child custody issues. Such issues must be resolved based on circumstances at the time of a separation or divorce.
While postnuptial agreements are presumed to be enforceable, you or your spouse may challenge the validity of a postnuptial agreement for certain reasons, including:
• Separate attorneys- you and your spouse should have separate attorneys if you are going to enter into a postnuptial agreement. If you do not have separate attorneys, the court will look at your postnuptial agreement more closely for unfairness and may not enforce the postnuptial agreement.
• Fraud- if you or your spouse fails to disclose your assets honestly or if you hide your assets, a court may not enforce the postnuptial agreement.
• Coercion/duress- if either your or your spouse uses pressure to get the postnuptial agreement signed, or does not give the other enough time to consider the postnuptial agreement, the court may not enforce the Postnuptial Agreement.
• Unfair and inequitable- if the postnuptial agreement favors you or your spouse unfairly, for example by leaving the other spouse with nothing, the court may not enforce the postnuptial agreement.
Reference: Charlotte Lee, New York City Bar, Legal Reference Services, February 2015