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.