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What is a postnuptial agreement? Is it the same thing as a prenuptial agreement? Does it only protect one spouse while it leaves the other spouse with nothing even after a long-term marriage? Or does it only apply to short-term marriages? The truth is many people are unfamiliar with the concept of a postnuptial agreement. It does work like a prenup, but it’s signed after you get married. This means you have more power and more say over what you get if you do divorce your spouse because you married right into whatever assets he or she already had prior to your wedding.
A postnuptial agreement is less common than a prenup, but it is important. It doesn’t mean you’re looking to the future with the assumption your marriage will not last, and it certainly doesn’t mean you’re working on getting a divorce. It means you want to protect yourself if something should happen. Perhaps you began a business of your own once you got married and you want to be sure you’re protected if you divorce. Maybe your spouse is suffering from an addiction that wasn’t present prior to your marriage and you worry that your financial life won’t be protected if it doesn’t work.
Create a Binding Legal Document
Brooklyn courts of law do recognize a postnuptial agreement as a binding document in court, but only if it meets all the criteria for a binding document. There is no way a court of law in Brooklyn will recognize a verbal agreement as a postnuptial agreement. You can sit down with your spouse and discuss how you want to divide your marital assets and your debts if you ever divorced, but you cannot take that conversation into a court of law and present it to a judge as a binding contract.
You must write down your postnuptial agreement. Even if it’s written on a piece of notebook paper in red marker, writing it down is the first step toward making it a legal contract between two parties. The next step is to make sure it’s signed. A court of law will not consider a postnuptial agreement if both parties did not sign the agreement. It’s better still if there is a witness signature on the document stating you were both of sound mind and body when you signed this contract.
If you or your spouse feel threatened, tricked, or bullied into signing this contract for any reason, it can be argued in court and possibly thrown out as a binding legal document. For example, if you ask your spouse to sign it after a night of drinking heavily and he or she is drunk, it might not count as being legal. If you ask him or her to sign it while they are on medication following surgery, it’s not binding. Both of you must be of sound mind and body when making decisions such as this.
The postnuptial agreement must be fair and it must include full disclosure. You cannot ask your spouse to sign a document that states you get the kids, the house, the money, the business, the cars, and the vacation house while your spouse walks away without anything. Even if he or she agrees to it, the court will not recognize this. Finally, you must be fair and disclose everything. You might not tell your spouse how much you make at work, but you must disclose this and everything else prior to asking your spouse to sign. If your spouse can prove you did not do this, it’s considered an invalid postnuptial agreement.
Is a postnuptial agreement for me?
There is no right or wrong way to view this kind of agreement. If you decide you want to have one on hand, you should have one. This might be something you and your spouse fill out because your spouse co-owns a business with his or her family or has a family inheritance he or she wants you to take over in the event of their death. They could sign a postnup issues this as their dying wish so their family cannot try to argue it or push you out.
It’s not always a document you sign because you might not be sure your marriage is going to last. It’s to protect you from death, from business partners, and even from debts. There are many reasons to fill out a postnuptial agreement, and you should speak to an attorney regarding this situation. You should both hire an attorney to represent you, to draft a postnup agreement, and an attorney to review it to be sure it’s in both your best interests.
Once this is done, it’s safe to sign the postnuptial agreement and take it to court if you ever need it. If you decide later you don’t want to abide by the agreement, you can always have your attorney argue the validity of the document based on stipulations you include, such as the fact that it’s null and void if one of you engages in an affair or is dishonest in the marriage. Talk to an attorney to help ensure you’re protected with and from your postnuptial agreement in case anything happens in your future. You never know, and it’s always better to be safe than it is to be sorry.