New York Postnuptial Agreement Lawyer

What Is a Postnuptial Agreement?

A postnuptial agreement is a contract drafted and signed by two spouses AFTER being married, which outlines the division of assets in the event of a divorce or legal separation.  A postnuptial agreement may also address or outline certain issues relating to support and custody.

Postnuptial vs Prenuptial Agreement

A postnuptial agreement is a contract signed after getting married, as opposed to a “PRE” nuptial agreement, which is signed prior to the marriage. Both contracts can address a majority of the same content regarding any future divorce or separation.

New York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

Postnuptial Agreement vs Divorce

A postnuptial agreement keeps your marriage intact. A divorce legally separates all matters between the two spouses. A postnuptial agreement will keep the legal status of marriage intact and only impact the specific items outlined in the postnuptial contract.

Can You Get a Postnuptial Agreement after Marriage?

Yes. A postnuptial agreement is a contract that would be drafted and signed only after marriage.

Are Postnuptial Agreements Legally Binding?

Yes. A postnuptial agreement is legally binding. However, a consultation will determine if there are any fundamental flaws in your postnuptial agreement that may prove to be unenforceable. On the other hand, a consultation will also confirm if your postnuptial agreement meets all criteria to uphold the contract as legally binding.

Can Child Custody Be in a Postnuptial Agreement?

The postnuptial agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240, and § 240. This provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York cannot conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when addressing education, child support, and care. However, judges make a final determination on child custody and support based on the child(ren)’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce or separation.

A separation agreement, in proper form, can deal with child custody and child support terms. The difference between a separation agreement and a postnuptial agreement is the separation agreement is made when the parties are living apart, adhering to the terms of the separation agreement, and intend to do so for the foreseeable future.

Child custody cannot conclusively be in a postnuptial agreement as it is deemed to be against public policy to negotiate custody in advance of the custody dispute. However, the custody provision can influence any judge to consider the intent of the parties when entering into the postnuptial agreement. The legislature is clear that child custody is a very personal dispute and must be handled in real-time and with extra caution.