Statistics show that approximately 40% of marriages end in divorce. As such, it is critical that married people plan accordingly in case things go awry. One way of planning for such an occurrence if you didn’t sign a prenuptial agreement is to sign a postnuptial agreement. Postnuptial agreements are signed after a couple is married.
Why should couples consider a postnuptial agreement?
Couples may not see the need for a prenuptial agreement when they get married, but things change. You may get a significant amount of fortune and become worried that you’ll lose it in divorce in future. You may also decide to quit your job to raise your kids and need assurance that your rights and future will be protected in the event of a divorce. Luckily, postnuptial agreements in New York are legally binding and enforceable.
In both, full financial disclosure is mandatory. This includes information on all assets and debts, both combined and individual. It also includes the payment plans for all debts, the details of your Will, a list of belongings owned jointly and separately, spousal support, child support for children from a different marriage or relationship, splitting of all property between the two partners in the event of divorce, insurance coverage, and future income or gains.
Postnuptial agreements can be edited and amended with time and as the married partners continue to gain wealth. You might get a promotion, come into a large inheritance or become successful within the course of your marriage. It is advisable for couples to draft postnups after marriage in order to make important changes that were missing in the prenup. In this case, the postnup will reign supreme in the event of a divorce. However, if the postnup did not involve full disclosure and other important elements, it will be declared null and void, and the prenup will be used instead. This can work in favor of either one of the parties.
If no postnuptial agreement is present, the law dictates that property be divided equally between divorcing partners. This is not always fair if one party worked for or inherited the wealth. This is one of the reasons why a postnuptial agreement is necessary. Aside from divorce, a postnuptial agreement is used to determine the division of assets upon the death of one spouse.
The Role of an Attorney in a Postnuptial Agreement
There are a number of reasons why you would need a lawyer for your postnuptial agreement.
The main reason is the actual drafting of the postnuptial agreement. A postnuptial agreement has to be notarized. Without this is not enforceable by law. The process of drafting and notarizing is complex and is best done by an experienced lawyer who will include everything necessary.
Courts take postnuptial agreements where the two parties each had different representation more seriously than if one lawyer was involved or none at all. It is imperative that you get at least one lawyer involved in the process. If you can afford to, two lawyers are the best option, one for each spouse. A consultation with and involvement of a lawyer is critical as they will make sure all bases are covered. If one spouse does not have their own lawyer, then a judge could dismiss the agreement altogether.
A postnuptial agreement is cheaper than getting a divorce without one. The cost is less compared to the legal representation costs that will be incurred during a divorce.
Experienced attorneys will draft comprehensive documents that will hold in the event of a divorce or death of a spouse. Any postnuptial agreement should be witnessed by either a notary or a lawyer. So even if you draft your own postnuptial agreement, you need a lawyer to at least act as a witness. Remember that this will increase the chances of the postnup being fully relied on for splitting of assets during divorce proceedings. Full financial disclosure is an important feature of a strong postnup without which, a judge can choose to ignore the agreement and settle the divorce issues traditionally. There should be no sign of duress or undue influence. A postnup should appear to be well-thought out and not done in a rush. A good postnup should not be unconscionable. It should be fair to both parties and not lean in favor of one. Marital and separate property and debt should be well-defined.
All this information and details are too much for an individual who does not have a legal background.
Laws Governing Postnuptial Agreements
Although postnups vary from state to state, there are 5 things that each and every prenup should have. It should be drafted in writing, should be done with full and fair disclosure, must not be unconscionable, needs to be signed by both parties, and executed voluntarily. An oral postnuptial is no agreement at all.
A postnuptial agreement is referred to as a marital agreement in law. A couple gets to determine what marital property and separate property is in the marriage. The agreements can also include division of assets in kind and make up for monetary deficiencies.
It is clear that a lawyer is needed during the signing of a postnuptial agreement. The best way to make sure your postnuptial agreement is foolproof and all-inclusive as well as legal is to get sound advice from a professional. Give us a call today for experienced representation and advice on postnups and divorce in Manhattan.