A prenuptial agreement is a contract signed by a couple before the marriage ceremony occurs. So, while you cannot sign a traditional prenup after marriage, the legal system provides an alternative known as a postnuptial agreement, or, postnup. These agreements serve a similar purpose, allowing married couples to decide on the division of their assets and financial responsibilities should the marriage end by divorce or death.

While they can make potential divorce far more affordable for both parties, neither prenups nor postnups indicate an intent to separate. Clarifying financial expectations provides a measure of security for couples, many of whom find it actually strengthens their marriage.

What Is a Postnuptial Agreement?

A postnuptial agreement is a binding legal contract signed by spouses after marriage that outlines financial responsibilities, and the management and division of assets in the event of a divorce or death. Changes in financial situation or relationship dynamic are common reasons to pursue a postnuptial agreement, or amend a prenuptial agreement.

Postnuptial agreements can cover:

• Division of currently held property
• Future division of property
• Debt responsibilities
• Spousal support or alimony
• Pet ownership

Securing the financial aspects of the relationship can even remove the practical need to separate or divorce for some couples.

Why Would I Need a Postnuptial Agreement?

Many couples assume marital agreements are only available before the wedding. However, life circumstances often change after marriage. A postnuptial agreement can help spouses clarify financial expectations, protect certain assets, address newly acquired wealth, allocate responsibility for debt, and provide certainty in the event of divorce or death.

When Should You Consider a Postnuptial Agreement?

Married couples may consider a postnuptial agreement when:

• One spouse receives a significant inheritance or gift.
• A spouse starts, purchases, or grows a business.
• One party leaves the workforce to care for children.
• The parties want to protect separate property acquired during the marriage.
• One spouse incurs significant debt or demonstrates financial irresponsibility.
• The couple is reconciling after a period of marital difficulties and wishes to establish clear financial expectations moving forward.

A postnuptial agreement can provide financial clarity and peace of mind while preserving the marital relationship. Like a prenuptial agreement, it is a planning tool, not a signal that a divorce is imminent.

Are Postnuptial Agreements Enforceable in New York?

Postnuptial agreements are intended to be legally binding, much like prenuptial agreements. However, they must comply with state laws to be enforceable. In New York, for instance, courts hold prenuptial and postnuptial agreements to a high standard of fairness. For a postnup to be enforceable in New York, it must be written and voluntarily signed by both parties, including full financial disclosure. Any lack of transparency, or evidence of coercion can invalidate an agreement.

It is important for both parties to have their own attorney, not a shared attorney. New York courts prefer both parties to have the opportunity to seek independent legal advice, ensuring that neither was unduly pressured into agreement. When these conditions are met, postnuptial agreements are typically upheld by courts, providing clear financial directives and strengthening marital relationships.

Factors to Consider Before a Postnuptial Agreement

Before signing a postnuptial agreement, couples should consider several important factors:

• Financial changes: Any significant changes in financial status or assets since marriage, such as inheritances or career advancements, might necessitate a postnuptial agreement to define and protect these new assets.
• Protection of assets: Decide which assets will remain as separate property and which will be shared as marital property, especially for future estate planning or potential separations.
• Children from previous relationships: A postnuptial agreement can secure inheritance and financial provisions for children from previous relationships, safeguarding their future rights.
• Marital dynamics: Shifts in marital roles or goals, like one spouse becoming a stay-at-home parent, can impact financial agreements and require updates through a postnuptial.
• State laws: Local laws heavily influence the terms and enforceability of postnuptial agreements, from asset division to spousal support.

Couples should view postnuptial agreements as a collaborative effort, facilitated by legal counsel to ensure fairness, compliance with laws, and alignment with the couple’s current needs and future goals. These agreements cannot bind parties on custody and child support, however. Provisions that dictate how parties may exercise custodial rights, or waive child support will not be enforced in New York.

Creating a Postnuptial Agreement

The following steps are typically involved in preparing and executing a postnuptial agreement in New York:

1. Determine needs: Begin by discussing and assessing the need for a postnuptial agreement with your spouse. Consider why it’s necessary and what you aim to achieve with it.

1. Full disclosure: Both partners must provide a full and honest disclosure of their financial assets and liabilities. This transparency helps prevent the agreement from being challenged or even invalidated in court.
2. Draft the agreement: Work with experienced family law attorneys who understand state laws and can advise you on what is and isn’t needed for your specific situation. They can then draft an agreement that meets your specific needs and circumstances. The attorney should ensure that the agreement is balanced, fair, and complies with all legal standards.
3. Independent legal advice: Each spouse should have their own attorney review the agreement. This step helps prevent conflicts of interest and ensures that both parties fully understand the terms and implications of the agreement.
4. Signing the agreement: Once the agreement is drafted and reviewed, both parties should sign it in the presence of a witness or notary. This formalizes the agreement, making it a legally binding document.

These steps help couples ensure their postnuptial agreement is enforceable and reflects the intentions and needs of both spouses, providing clarity and security for the future.

Tully Rinckey attorneys understand that the issues involved in matrimonial matters can be challenging, and they will handle your matter with the attention and tact it deserves. If you have questions about prenuptial agreements, postnuptial agreements, or property division during a divorce, the attorneys at Tully Rinckey can help you understand your rights and protect your financial interests. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Nancy Nissen, Esq. is a Partner at Tully Rinckey, PLLC’s office in White Plains, New York, where she primarily focuses her practice on family and matrimonial law, with an additional concentration on education law. Nancy is a trained mediator approved by the NYS Unified Courts System Office of ADR, mediating disputes in family and matrimonial law. Nancy also has experience in Education Law, assisting prior family law clients in the areas of IEPs, 504 plans, and dealing with grievances for college students.