Postnuptial Agreements

Postnuptial Agreements

This refers to legal marital accords made by the spouses after they are married, distinguished from “Pre-Nuptial Agreements” made by the spouses before they get married.

There are several kinds of post-nuptial marital agreements in New York that the spouses can enter into, depending upon what they intend to accomplish by entering into this type of arrangement. For example:

A “Separation Agreement” is usually entered into by spouses who intend to separate physically and/or be divorced.

Another kind of a “post-nuptial” contract is made by spouses who do not intend to separate or divorce, and will continue to be married to each other and to live together. The purpose of their written “Post-Nuptial Agreement” is to define each spouse’s financial legal rights and the manner in which their marital assets and liabilities will be distributed between them. Usually, the spouses also agree that from the time when they sign their post-nuptial agreement and continuing thereafter, all of the assets that each spouse acquires in the future, constitutes his and her separate property which will not be distributed between them in case they decide to divorce in the future.

A Separation Agreement defines the terms of the spouses’ legal separation and disposes of related issues, such as the manner in which the spouses intend to distribute their assets and liabilities (debt) between them as well as other issues such as the custody of their children who are under the age of 18 years, the amount and duration of spousal support (alimony), the amount of child support and other required expenses for their children and the payment of legal fees.

In order for any matrimonial agreement, including pre-nuptial and post-nuptial ones to be binding on the spouses and enforceable in a court of law, it must be in writing, subscribed by the spouses. The requirement of a written contemporaneous acknowledgment is mandatory rather than permissive

New York Domestic Relations Law governs matrimonial agreements. It provides, in part, that an "... agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded."

A Stipulation of Settlement is an agreement which is entered into by the spouses orally, in “open court.” In such event, it is dictated by one of the lawyers, on the record, in open court, in the presence of the judge presiding over the case. Immediately thereafter, the Judge proceeds to ask each spouse whether or not they understand the terms of their stipulation, etc. This procedure is known as “allocution of the parties.”

In addition to the legal aspects of a postnuptial agreement, a couple can experience a certain discomfort in the process of obtaining one. There may not always be harmony and this can potentially lead to some friction between spouses. Ingrid Gherman has acquired the kind of experience necessary to enable her to mitigate these problems. She has drafted and negotiated countless marital agreements, including both pre-nuptial and post-nuptial ones. If you and your spouse are contemplating a post-nuptial agreement, contact Ingrid Gherman’s office at (212) 941-0767 or fill out the on-line form.

For more information about marital agreements