Postnuptial Agreements are made during the marriage. Postnuptial Agreements do not alter the marital relationship. Postnuptial Agreements enable spouses to enter into binding contractual agreements that set terms or resolve disputes without divorcing or separating.
A Postnuptial Agreement can address all the issues of the marriage - custody and parental rights, financial and property rights, child support, maintenance (also known as alimony), and equitable distribution which is the division of the property and responsibility for liabilities. These issues will often have a significant impact for many years to come. It is important to do it right.
A Postnuptial Agreement can also address certain estate rights such as making a provision in a will or to waive the rights that a spouse would otherwise have in the estate of their spouse. This is very useful in a second marriage where one or both of the spouses have children from prior relationships who they want to provide for.
The terms of a Postnuptial Agreement can be for permanent, long-term, short-term or temporary circumstances. A Postnuptial Agreement can address all of the issues of the marriage or only those matters that the parties want to provide for at the time.
There are many different reasons for entering into a Postnuptial Agreement. Some common reasons are: for people who married without a Prenuptial Agreement and now want to do one after the marriage, to amend the terms of an existing Prenuptial Agreement or a prior Postnuptial Agreement, to settle some or all of the issues of the marriage (custodial, support, property) without a divorce or separation, to address how the monies from the sale of a property should be divided or used in the future, to provide for what the parties’ rights are in a particular property or debt, to address unexpected issues that arise during the marriage, and many other reasons.
Postnuptial Agreements provide certainty and stability for important issues such as property rights, support and custodial issues. It avoids contentious, costly and unpredictable legal disputes if there is a future divorce. It allows people to keep control of parenting and financial matters rather than leaving control to judges and lawyers in the environment of an emotionally charged and prolonged contested divorce case.
New York law and public policy favors the use of Postnuptial Agreements. New York law recognizes the benefits of people resolving issues by agreement instead of through contested court proceedings.
Postnuptial Agreements are binding contracts. A Postnuptial Agreement must be carefully considered as it will be addressing important rights in the future – often many years in the future – and it will be addressing those rights under circumstances that are often not yet known at the time of the agreement such as the parties’ future incomes and properties, children, and the future health of the parties and children. The implications and consequences of these agreements should be thoroughly reviewed with and explained to the client before signing it.
Postnuptial Agreements also have certain legal requirements that make them different than other contracts. To be valid, they must comply with signing formalities mandated by New York law. Unlike other contracts, Postnuptial Agreements can, under certain circumstances, be vacated or cancelled by the Courts long after it was made- such as at the time of a divorce. Some reasons for vacating a Prenuptial Agreement are if the terms are inherently unfair, if it was made under legal duress, or if it was not properly executed. Prenuptial Agreements must be thought out and done properly.
Postnuptial Agreements are very important agreements as they affect the most important rights. Your objective should be getting favorable terms and to have it done quickly and with the least friction.
Proper legal representation is essential. The attorney must be thoroughly familiar with divorce law and should have the experience to guide the process to a successful conclusion.
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