Postnuptial agreements in New York

A postnuptial agreement is essentially the same as a prenuptial agreement, except that the spouses enter into it after they marry. Each party discloses all the assets and liabilities that they own, both separately and as a couple. Then the responsibilities and rights of each spouse is set forth, which includes how all assets will be divided in the event of divorce or death.

Postnuptial agreements are particularly useful if you have been married before, have children from the previous relationship(s), and want to ensure that certain assets go to them. They can also provide you with financial security if you intend to temporarily leave the workforce to raise any children.

Defining separate property                                                    

The agreement should identify exactly which property is separate (meaning that it belongs to you alone and will continue to be yours after the marriage) and which is marital property. Bear in mind that if you label an asset as yours alone and fail to keep it in your name only, it may later be declared marital property and divided accordingly in your divorce.

Establishing spousal and child support

Postnuptial agreements can establish how much money one of you will pay to the other in spousal and/or child support should the marriage end. Some couples even confirm maintenance terms if one spouse intends to stop working to raise any children.

Confirming Separate debts

If one or both of you carried a significant amount of debt into the marriage, then your postnuptial agreement can confirm that these respective obligations do not become a joint responsibility.

Challenging a Postnuptial Agreement

Postnuptial agreements are presumed to be enforceable contracts, but one or both spouses may later challenge them successfully for reasons like the following:

• Failure to disclose all assets
• One spouse’s signature was coerced or obtained under duress
• The contents favor one spouse at the expense of the other
• You and your spouse did not have separate attorneys

One frequently-cited example of a successful postnuptial agreement challenge is Petracca v. Petracca (2012). This contract, signed four months after the parties married in 1995, established the following:

• The $3.1 million marital home was the husband’s separate property
• The wife, who was a homemaker, would waive her interest in any of her husband’s business interests, including any appreciation in their value during the marriage.
• The wife waived all rights to the husband’s estate
• If the parties divorced, the wife would forgo maintenance, except for a token sum that would vary depending on the marriage’s duration

When Mrs. Petracca sued for divorce in 2008, she claimed that her husband had bullied her into signing the agreement, that she did not understand its terms and did not receive legal advice. She was also able to prove that at the time the agreement was made, Mr. Petracca had underestimated his net worth by at least $11 million.

The Second Department concluded that the terms of the postnuptial agreement were manifestly unfair and therefore unenforceable.

For an agreement to stand up in court, it must be fair to both sides and based on full disclosure. A New York family law attorney can help you draft a postnup that protects your assets in a way that does not shortchange your spouse and supports an independent future for you if the marriage ends. Call 718-402-5204 to reach the Law Offices of Eskin & Eskin, P.C. Our attorneys have over 40 years of legal experience and provide family law services from a family team. Visit www.EskinAndEskinLaw.com to learn more about us.