We're a boutique law firm - which means you get to work directly with one of our founding partners.
Spodek Law Group is one of New York's oldest law firms. Trust us with your legal issue.
Our firm has offices all over NYC and Long Island. We make it convenient and easy.
No couple enters into a marriage expecting to get a divorce. Some couples realize things can change in a relationship. When this happens, a divorce can be a real possibility. If important decisions are not made prior to the start of divorce proceedings, things can become very negative between the marriage partners. Some couples will sign a prenuptial agreement before they get married to avoid problems if they decide to end the marriage. Many couples believe if they don’t have such an agreement in place before being married, they can’t have one. This isn’t true. When couples are married and want such an agreement, it is still possible. After a couple is married, it will be called a postnuptial agreement.
There are a number of reasons a couple may want to have a postnuptial agreement. This could involve a change in the relationship due to an inheritance, career change, liquidity event and more. It can be used to avoid financial disputes by forcing spouses to think about money matters prior to a dispute occurring during their divorce.
When a married couple enters into a postnuptial agreement, they are agreeing to certain financial events occurring should their marriage end in a divorce. It is not designed to control the behavior of one spouse. This type of agreement does not change because one spouse fails to perform regular maintenance on a roof. It isn’t able to be used to determine child custody. Parents can agree to certain custody plans and submit them to the court during their divorce. It is up to the court to approve these plans. A postnuptial can be effective in determining alimony and division of property. When done correctly, it can eliminate a lot of anger and fighting when a couple decides to end their relationship.
The state of New York has laws that will determine how marital property is to be divided when a marriage ends in a divorce. New York courts will recognize the terms of a valid postnuptial agreement. This will happen even if the agreement is different from how a New York court would divide the property. The postnuptial agreement will also control how marital property and assets out of state are distributed.
One of the main benefits of having a postnuptial agreement is that it can define separate property. The property and assets marriage partners bring into a marriage is known as separate property. The couple needs to keep their separate property away from any property they obtain during their marriage. As long as this is done, the separate property will belong to the marriage partner who had it prior to the marriage. Should a couple not do this, and one spouse put the name of the other spouse on the title of property, it becomes marital property. This can not be changed even with a postnuptial agreement. It will be divided between the marriage partners during a divorce based on the laws of the state of New York.
Prior To Signing
There are certain things a person should do when presented with a postnuptial agreement. The first thing is to have the agreement reviewed by their own attorney. One spouse’s attorney isn’t permitted to provide advice to the other spouse. This would be considered a conflict of interest. A spouse can’t get out of their obligations regarding a postnuptial agreement once they have signed it. It doesn’t matter it they claim they didn’t read it. It is possible to have the terms, conditions and other areas of the agreement negotiated. This should take place and be completed prior to it being signed.
Most courts hold that spouses owe one another a fiduciary duty. This is especially true when entering into a contract. Each spouse must be certain all their finances are completely disclosed. This is to make certain each side is being given a fair agreement. This shows no coercion or threats were involved. It is more likely for a New York court to declare a postnuptial agreement invalid than a prenuptial agreement. The reason it the existing duties one spouse owes the other. An attorney can make certain all pertinent finances are fully disclosed by both spouses. They will know how to show both spouses entered into the agreement of their own volition. Failure to do these things can make the postnuptial agreement invalid.