Couples who get married expect to stay together for the rest of their lives. Nobody expects to divorce. But over the course of a relationship, things can change. People sometimes grow apart over a span of several years, or they begin to have conflict where they didn’t before. When two people can no longer get along or reconcile their differences, divorce can sometimes be the best option.
There are a number of important decisions that should be made before the divorce proceedings begin. If they aren’t handled prior to the proceedings, they may cause hostility and tension between the involved parties. One of the ways couples avoid divorce-related problems is by signing a prenuptial agreement.
You’re probably familiar with prenuptial agreements as legally binding documents that are signed prior to a marriage. But what many people don’t know is that you can still create the same agreement after you’ve gotten married. If this agreement is put into place after the marriage, it’s considered a postnuptial agreement rather than a prenuptial agreement.
Reasons for a Postnuptial Agreement
There are a number of reasons a couple may decide to pursue a postnuptial agreement. Usually, these involve changes in circumstances and new factors that weren’t an issue prior to the marriage. In addition, couples may use a postnuptial agreement to help avoid a potentially lengthy divorce process and financial disputes.
Some factors that may make a couple seek a postnuptial agreement include:
- Newly liquidated assets
- A substantial inheritance
- A change in career for one or both spouses
The Basics of a Postnuptial
Upon signing a postnuptial agreement, a married couple agrees that certain financial occurrences will take place if they ever decide to get a divorce.
It’s important to understand that the goal is not to control either spouse’s behavior. These agreements cannot be used for child custody arrangements. It also can’t include “if-then” stipulations. An example: If my spouse doesn’t perform roof maintenance once per year, then he gets a smaller share of the inheritance.
If you do want to establish child custody arrangements for a potential divorce, you can discuss this with your spouse and put a plan in writing. During the actual divorce proceeding, you might submit this to the judge. The judge makes the final ruling on all custody arrangements.
Postnuptial agreements can be very helpful in determining the division of property and assets in a divorce. It might also outline a plan for spousal support payments. If the agreement is handled correctly, it’s a basic guideline that eliminates a great deal of hassle from a divorce.
Division of Property
In New York, there are laws outlined determining how to divide marital property during a divorce. Without a prenuptial or postnuptial agreement, assets are divided evenly between the two parties. However, if you do have a prenuptial or postnuptial agreement, the court will recognize its validity. A postnuptial agreement supersedes New York’s usual laws regarding property division.
In addition, if you have any assets or marital property located outside the state, the postnuptial agreement will determine how this is distributed as well.
Defining Separate Property
In most divorce proceedings, all marital assets are considered to be equally shared between the two spouses. Each spouse is entitled to an equal share of the total assets. However, if there’s property you want to keep separate, this is one of the main purposes a postnuptial agreement serves.
Basically, each individual will continue to individually own all the property they had prior to the marriage. Marital assets will only be calculated based on assets that were acquired after the couple was married.
There have been cases in which one party has lost the house they owned in the divorce because they added their spouse’s name to the title. Adding the spouse’s name turns the property into marital property, which is then divided according to New York law.
Before You Sign
If you’re presented with a postnuptial agreement, there are a few steps you should take before you sign the document. The most important is to have your attorney review it. Each spouse’s attorney is responsible for their own client. One spouse’s attorney is not allowed to give the other spouse advice, as this is a conflict of interest.
Be aware that you cannot change the terms of a postnuptial agreement after you sign it. For this reason, you need to be sure those terms are in your best interest