Using A Postnuptial Agreement In New York

In this article, you can discover:

• The primary purpose and conditions for a postnuptial agreement.
• The crucial role of “consideration” in making a postnuptial agreement binding.
• The variety of issues a postnuptial agreement can address.

What Is a Postnuptial Agreement And What Are Its Primary Purposes?

A postnuptial agreement is an agreement made after marriage, designed to outline the division of assets, spousal support, and other factors in case of divorce. It can mimic a prenuptial agreement or a separation agreement, but its use and effectiveness are tied to the specific intentions of the parties involved. For instance, if a couple has a wedding in the near future and feels rushed to draft a prenuptial agreement, they can opt for a postnuptial agreement instead to ensure no one feels pressured.

It’s crucial to understand that New York State requires “consideration” for a postnuptial agreement to be binding. This term refers to a mutual exchange—both parties must either give something to each other or specifically waive the right to obtain something.

The agreement cannot only dictate that one spouse is receiving or giving up everything; it must demonstrate reciprocity. Failure to meet this condition can lead to the agreement being rejected as unenforceable.

How Is a Postnuptial Agreement Different From A Prenuptial Or Separation Agreement?

While postnuptial agreements can serve similar functions to prenuptial and separation agreements, they are not the same. Prenuptial agreements are made in anticipation of marriage, while separation agreements typically come into play when parties are physically separated or plan to separate imminently.

Postnuptial agreements can be useful in situations that don’t quite fit these molds. For instance, one party might want to protect their assets from potential lawsuits against their spouse, and in such a case, a postnuptial agreement can offer the necessary protection. However, as mentioned earlier, it’s critical to ensure that these agreements include sufficient “consideration” to be legally binding.

What Issues Can a Postnuptial Agreement Address?

A postnuptial agreement can cover a broad range of topics, mirroring the issues that a prenuptial or separation agreement would typically address. These can include matters related to property division, spousal maintenance (or alimony), child support, and even custody/visitation if there’s an anticipated physical separation.

Setting custody or visitation arrangements can be complex if there’s no imminent physical separation. However, in some cases, parties may agree on such terms while living in separate parts of the same house (or alternating who resides in the house with the kids)—known as nesting. A postnuptial agreement provides the flexibility to accommodate these arrangements and more, filling the gaps where a prenuptial or separation agreement may not be sufficient.

For more information on Using a Postnuptial Agreement In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 468-0968 today.