Whether you and your spouse have been married for ten days or ten years, creating a postnuptial agreement can be highly beneficial. Postnuptial agreements do not mean that your marriage is coming to an end. Instead, they secure the assets and property for both you and your spouse to protect against any future disputes.
You and your spouse may consider a postnuptial agreement if your finances have recently changed or you did not create a prenup. But how do you go about creating this contract?
An experienced family law attorney can explain how to get a postnuptial agreement and work with you and your spouse to draft an equitable, legally enforceable agreement. Read on to learn the ins and outs of the postnup process in New York.
What Is a Postnuptial Agreement?
A postnuptial agreement is a contract in which a married couple indicates what will happen in the event of a divorce. This contract is similar to a prenuptial agreement, except a couple creates it after they are already married.
Most postnuptial agreements focus on how you’ll divide your marital assets and property in a divorce. When you get married in New York, the property you and your spouse acquire during the marriage becomes marital property. In the event of divorce, the law requires that e marital property be divided equitably between you and your spouse.
If you want to maintain your rights to the certain separate property you owned prior to the marriage— such as a home, retirement funds, or money in your savings account — you can designate these items in your postnuptial agreement.
Outside of finances, postnuptial agreements can cover a range of topics you and your spouse want to clarify in case of future separation, including how expenses will be paid during the marriage, spousal support if the marriage should end, how your marital assets will be divided, s, and more.
If you and your spouse have children, postnuptial agreements in New York can even include information about how child custody and child support will be handled if you were to separate. Who Should Make a Postnuptial Agreement?
Any married couple who has faced recent changes in their relationship or in their financial situation may benefit from creating a postnuptial agreement. Think of this agreement as an investment that clearly outlines what happens should you divorce. The more clear and specific your postnuptial agreement is, the fewer issues you’ll need to negotiate later.
While a postnuptial agreement can give peace of mind to any couple, you should especially consider one if these circumstances apply to your marriage:
- You have significant pre-marriage assets and did not sign a prenuptial agreement.
- You and your spouse are going through a rough patch and want clarity about what would happen in a divorce.
- One of you has recently experienced a major positive change in finances, such as a large inheritance or lottery winnings.
- You are experiencing financial insecurity that is impacting your marriage, such as dealing with substantial debts.
- You or your spouse have chosen to stop working to focus on the children or other needs of your family.
What Makes Up a Valid Postnuptial Agreement?
When you create a postnuptial agreement, a lawyer can help you draft a legally binding document. Casually signing a document at home with your spouse will not hold up in court. Instead, your postnuptial agreement must:
- Be in writing
- Be fair and just to both spouses
- Be voluntarily signed by both parties
- Be signed in the presence of a notary public with very specific language acknowledging that fact.
- Include full financial disclosure
- Include no evidence of coercion, manipulation, or emotional pressure from either spouse
Your attorney can help you understand how to get a postnuptial agreement that is legally binding and meets these requirements.
How to Get a Postnuptial Agreement in New York
Once you and your spouse have both agreed to create a postnuptial agreement, how does the process work? Let’s take a look at the steps your attorney or mediator will guide you through to make a valid, legally binding contract:
1. Discuss Your Goals for the Postnuptial Agreement
First, discuss the goals for the postnuptial agreement with your spouse. Typically, couples decide to make these agreements for specific reasons, such as outlining spousal support obligations, how to spend money during the marriage, and how to manage assets like real estate and sentimental items.
This stage ensures that you and your spouse are on the same page about the information and guidelines you will include in the postnuptial agreement. It can help you avoid long delays during the drafting process and make sure you're both ready to create this agreement.
2. Engage in Financial Disclosure
You and your spouse need to create a comprehensive list of your respective finances including your: :
- Other relevant finances
You'll need this information when you start negotiating the terms of your agreement, so preparing it in advance can save you time.
3. Meet With an Attorney, Even if you are Mediating Your Agreement
Mediation is a great process to use when negotiating the terms of a postnuptial agreement, but you should make sure you have the assistance of an attorney as well. Your attorney can help you ensure that this document properly addresses your concerns and contains the proper legal language to hold up in court and is equitable to both parties.
Additionally, a postnuptial agreement drafted with each spouse having had it reviewed by an attorney may be seen as more binding than one created without legal assistance. If you and your spouse divorce and find yourself fighting over the terms of the postnuptial agreement, you want to make sure it is clear and enforceable.
4. Define Separate Property — And Take Steps to Separate It
Now is the time to define the property you and your spouse each want to keep separate from the other should the marriage end. For example, you may decide that the income you and your spouse earned during the marriage will be considered separate property unless you voluntarily add it to a joint account. For instance, if a family member left either of you an inheritance, and you decide to invest those funds in a joint asset, such as a new home, you will get those funds returned to you.
5. Discuss Other Matters to Include in the Agreement
You and your spouse may want to include other matters in the postnuptial agreement, such as how you would divide shared pets or specific furniture. You can make your postnuptial agreement as detailed or simple as you'd like.
6. Sign Your Postnuptial Agreement
Once the Agreement is finalized and approved by you, your spouse, and your respective attorneys it will be ready to be signed in the presence of a notary public.
Working with a qualified attorney or mediator from Vacca Family Law Group can help you understand how to achieve a postnuptial agreement that helps you and your spouse feel more secure in your marriage by outlining clear expectations and guidelines should your marriage end in divorce. Contact us today at 646-798-4740 to schedule a free initial call to find out whether a postnuptial agreement may be right for you.