You’re Married, Now What? Having a Postnuptial Agreement in New York

June 24, 2020

By Jill K. Sanders, Esq.

A couple in love can often get caught-up in the whirlwind of getting married. Yet when the dust settles after the wedding, that couple may realize that marriage is a partnership – one with legal consequences. A postnuptial agreement may be one way to settle certain affairs amicably after the wedding, but well in advance of a divorce proceeding.


What Is a Postnuptial Agreement?

A postnuptial agreement is a written contract executed after a couple gets married. The contract settles certain financial affairs in the event of separation or divorce. These types of agreements came into acceptance in the 1970s and are now entered into frequently by couples in New York.

In essence, a postnuptial agreement allows a married couple to determine how property and assets will be distributed in the event of their divorce. This can take pressure off a marriage and give spouses confidence in their future security. Otherwise, without a pre- or postnuptial agreement, applicable New York laws regarding distribution would apply.


What Goes in a Postnuptial Agreement?

In short, a postnuptial agreement determines property distribution and other financial matters. The agreement can:

  • Define separate and marital property. Separate property includes individually-owned assets a spouse brings to a marriage. Marital property includes property obtained by the couple during the marriage. It can also include separate property that becomes marital property (such as a separately-owned house that is later put in both spouse’s names). The agreement should specify what these assets are and identify if they are separate or marital property. And it can indicate how these assets will be distributed upon divorce. Note that separate property must be kept separate in order for the distribution specified in the agreement to be enforceable.
  • Detail pre-marriage debts. If one spouse has a significant debt prior to the marriage, the agreement can state the debt stays with that spouse upon a divorce.
  • Establish spousal maintenance (alimony). The agreement can establish the amount of support paid to a spouse post-divorce. It can also specify that there will be no spousal support.
  • Provide for children from a prior relationship. The agreement can detail how to provide for minor children from prior relationships. This applies if the other spouse does not legally adopt these children.

Note that a postnuptial agreement cannot dictate or control the behavior of either spouse. Further, the agreement should not specify plans for custody, visitation, and child support relating to minor children. A judge will determine these things based on the best interests of the child.


Enforcing the Agreement

A valid postnuptial agreement will be recognized by courts in New York. To be valid, the agreement must protect both spouses. Moreover, it cannot be entered into through fraud, coercion or duress, or when there is an inequality with the terms. There must also be a full and fair disclosure of all assets of both parties prior to entering into the postnuptial agreement. And both spouses must have independent legal counsel for the agreement to be enforceable. Lastly, the agreement must be executed and notarized.

Contact us today if you’re considering a pre- or postnuptial agreement. The lawyers at Pappalardo & Pappalardo, LLP will work with the team at Guttridge & Cambereri, P.C. to provide you the answers to all your matrimonial and family law questions.