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Brooklyn Family Law, Blog

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October 20, 2014
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October 21, 2014
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Post-Nup/Postnuptial! We are already married but want a Pre-nup. Can we do that now?

Post-nup, Postnup, Postnuptial. Post-nup agreement, Postnup agreement, Postnuptial agreementYou can do it now, but it would be called a Postnuptial Agreement, or antenuptial agreement, often shortened to Post-nup. These postnuptial agreements are primarily different from pre-nups in the timing of the execution being at any time after the marriage versus anytime before the marriage. Post-nups can be made shortly after you are married, or many years into the marriage. Just like prenuptial agreements, postnuptial agreements have to be in writing and executed by the parties at the end of the document in a very specific fashion.

One thing that cannot happen in a postnuptial agreement is that it cannot eliminate one party’s legal obligation to prevent the other spouse from becoming a public charge. In plain English, a postnuptial agreement cannot allow one spouse to impoverish the other by way of this agreement. The Court will strike down any provision or provisions of the agreement that does this and you may risk having the entire agreement being voided by the Court if this appears to be a goal of the postnuptial agreement.

Just like prenuptial agreements, postnuptial agreements must be fair and reasonable not just when they are signed, but at the time of any future divorce. As with contracts and agreements of any sort, both parties have to agree to the terms and cannot be defrauded, coerced or wrongly pressured into executing the agreement. Just as you cannot threaten not to marry someone to force them to sign a prenup, you cannot threaten to leave your spouse to coerce them into signing a postnuptial agreement. Make no mistake that a Court will overturn agreements that it finds to be anything other than fair or reasonable and fairly entered.

Postnuptial agreements can include provisions that establish rights to each others estates, distribution of property and debts, establishing what property and debt of the parties is separate and what is marital, what would happen to all property in the event of separation or divorce, custodial arrangements and child support could be established as well as spousal support and who owns interests in what business, by way of example. In establishing certain terms such as child support or spousal support, one must consider the statutory requirements for such obligations and draft the agreement to comply with those statutes to avoid having the postnuptial agreement fail in those areas. This would be an issue in the postnuptial agreement of making certain it will still be fair and reasonable at the time of divorce.

The mere fact that you are married does not mean that you and your spouse are prevented from entering into an agreement, a postnuptial agreement, to establish financial and other terms of your marriage and to protect both of you and your children in the event of divorce. It is always better to draft these postnuptial agreements when there are no problems in the marriage and both parties can agree. This will prevent a Court from making your decisions for you as the postnuptial agreement allows you to make your own decisions. Postnuptial agreements can actually contain provisions that allow a Court to make certain distributions of marital property that has not been specifically addressed in your postnuptial agreement.

One factor that is very common in cases where postnuptial agreements (antenuptial agreements) are overturned is that one of the parties is not represented by counsel or is represented by counsel that was effectively under the control of the other party, not the party supposedly represented. This is a place where you can protect your prenuptial agreement (antenuptial agreement) simply by making certain your spouse has independent, competent counsel in the drafting, review and execution of the prenuptial (antenuptial) agreement, or that you do if you are the one to whom it is being presented.

Post-nup, Postnup, Postnuptial. Post-nup agreement, Postnup agreement, Postnuptial agreementSomething else that should be employed is your own common sense. If you are being threatened by your spouse to sign the prenuptial agreement or you are threatening your spouse to force execution of the post-nup, you already have a problem. A postnuptial agreement was recently overturned where the terms of the postnup in divorce was the husband got approximately $21 million and the wife got $500,000 and spousal support of somewhere between $24,000 and $36,000 a year for a specified period of time. Common sense certainly says that this cannot, under any circumstances, be considered either fair or reasonable. It is no shock that the Court overturned this prenuptial agreement. It also so happens that the husband lied in putting forth his assets for the post-nup by about $11 million, and the Court found him completely incredible. Here, again, use your common sense. People generally know when their behavior is bad and so will a judge. If the only way you will be able to maintain your postnuptial agreement in the future is to lie to the Court about it, you have a serious problem as you are putting your post-nup, and your goal in having a post-nup, at serious risk. This does not take into account that you are putting your marriage at pretty serious risk as well. Both sides need to use common sense in these matters and need to seek competent counsel to protect their interests and rights now and in the future, before executing any prenuptial (antenuptial) agreement

We suggest that you review our site for additional information pertaining to your situation concerning prenuptial agreement information which, but the timing of executing the agreement, apply to postnuptial agreements as well.

If you would like to discuss negotiating or drafting a postnuptial agreement, or need review of a postnuptial agreement that you have been presented, our Brooklyn Leanly Law practice would be happy to discuss the details of your situation with you to see how we may be of service.

Contact the Family Law Practice of Renata Weissman, located conveniently in Brooklyn NY for legal advice regarding Post-nup agreement, Postnup agreement, Postnuptial agreement. We can be reached Toll Free at 855-736-2829.