The pros and cons of postnuptial agreements in New York

Postnuptial agreements are similar to prenuptial agreements, but New York family courts can approach them quite differently.

Being young and in love is not always the best state of mind for long-term financial planning. People about to get married are aware of the statistics, of course: about half of all marriages end in divorce. Still, many newlyweds have few assets and are resolved to be together forever, meaning the thought of a prenuptial agreement is the furthest thing from their minds.

Fortunately, that doesn't necessarily mean it is too late to enter into a postnuptial agreement, and there are many reasons to do so. One spouse may choose to stay at home to care for children, for example, and want the financial protection of a postnuptial agreement. The couple may decide to open a small business together and wish to avoid future conflicts. There could be estate planning benefits to a postnuptial agreement. A couple may wish to update an existing prenuptial agreement. The reasons are numerous.

In addition, financial arguments are the leading cause of divorce for married couples, meaning that addressing financial matters with clear goals in mind can actually reduce stress and contentiousness in a marriage before financial problems become unsolvable. And if divorce is ultimately the best option, a postnuptial saves time and money for everyone involved.

The main difference between a prenuptial and postnuptial agreement is the date the couple enters into the agreement: a prenuptial agreement takes place before the marriage, a postnuptial afterwards. However, while the difference may seem slight, courts can view prenuptial and postnuptial agreements very differently.

Postnuptial basics

In a postnuptial agreement, a married couple agrees to certain financial matters in the event of a dissolution of the marriage. A postnuptial agreement will generally not be able to control the behavior of one spouse. For example, a postnuptial agreement cannot assign household chores to one spouse. In addition, a postnuptial agreement cannot give custody of minor children to either parent - while parents can agree to parenting plans and joint or sole custody and submit it to the court during divorce proceedings, a family law judge will grant custody based on the best interests of the child.

A valid postnuptial can resolve many financial issues surrounding a dissolution of a marriage, however, including alimony and property division. If done incorrectly, a postnuptial agreement can be a waste of time and resources; if done correctly, they can be an invaluable tool that saves money, worry and anger.

Valid postnuptial agreements require experienced representation

Because spouses owe each other a fiduciary duty when entering into legal contracts, the spouses must ensure that all finances are fully disclosed and that each side is receiving a fair deal, without any threats or coercion involved. In general, courts can be more likely to declare a postnuptial agreement invalid than a prenuptial agreement, because of the existing duties spouses owe each other. However, so long as finances are fully disclosed, each spouse enters into the agreement of his or her own volition, and each side has spoken with an attorney, courts will allow postnuptial agreements to dictate alimony and property distribution.

That is why it is important when considering a postnuptial agreement to consult with an experienced family law attorney. New York residents considering a postnuptial agreement should contact Lawrence B. LaRaus, Esq. to discuss their financial goals, legal options and the benefits of entering into a postnuptial agreement.

Keywords: Postnuptial agreements, prenuptial agreements, property division, divorce