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Should I consider a post-nuptial agreement?

On Behalf of | Jul 24, 2023 | Property Division

Not everyone has a pre-nuptial agreement drafted before getting married, for various reasons. You may think you will never divorce or believe that you do not have enough property to bother with one.

However, situations often change over the course of a marriage, and you might find yourself in a financial position you never expected. Perhaps you or your spouse receive a major promotion or raise at work, or one of you gets a significant inheritance from a family member.

If this happens, you might start rethinking that choice to forego a pre-nuptial agreement. A post-nuptial agreement may then be an option to consider.

What is a post-nuptial agreement?

A post-nuptial agreement is essentially the same as a pre-nuptial agreement, except that it is drafted after you are already married, instead of before.

The first step in drafting a post-nuptial agreement is identifying and disclosing all your property and debts and placing a value on each. This includes marital and separate property.

After that, you and your spouse decide how property will be divided if you divorce. New York law uses a certain legal standard when dividing marital property. Your post-nuptial agreement terms can divide your property however you and your spouse choose, provided you have both given a fair and honest disclosure of your property.

This means that even if a court would have divided your property differently under New York law, its terms will generally be upheld if you and your spouse both agree to it.

What can we include in a post-nuptial agreement?

Your post-nuptial agreement can contain agreements on topics besides property division. You can include agreements on things such as maintenance, child support and custody.

There are times a court may refuse to enforce a post-nuptial agreement. Evidence that one spouse did not provide a full disclosure of their property, coerced the other spouse into signing the agreement or terms that unfairly favor one spouse could cause a court to void the agreement.

There is no easy answer to whether a post-nuptial agreement is right for you. Some professional guidance is usually necessary.