Postnuptial Agreement
(NY)

Summary

This template is a postnuptial agreement for use in New York. It contains practical guidance and drafting notes. A postnuptial agreement is a hybrid marital agreement entered by the parties during marriage and without a divorce action pending. It consists of provisions that define the parties' separate and marital property akin to a prenuptial agreement, but can also address issues more specifically that may have already arisen during marriage such as marital debt. The postnuptial agreement is a marital agreement executed by parties after their wedding day. It contains the parties' resolutions concerning the issues of equitable distribution, maintenance and child custody in the event of a future divorce action. Where there is a substantial disparity between the parties' income and assets, the postnuptial agreement serves two important purposes. First, the postnuptial agreement can be converted into a separation agreement. As such, it can provide the grounds for an application for a divorce under N.Y. Dom. Rel. Law § 170(6). Alternatively, it can serve as a divorce settlement in an uncontested/No Fault divorce action (N.Y. Dom. Rel. Law § 170(7)). Secondly, it can protect a party's inheritance and interest in a business. Importantly, it ensures the support of children of a prior marriage who are not adopted by the client's spouse. Although each document will vary in its provisions dependent upon the parties' circumstances, all postnuptial agreements must comply with statutory requirements in order to be approved by the court. Due to the uniqueness of each postnuptial agreement matter and your obligation to ensure the long-term enforceability of the agreement, a thoughtful tailoring of each paragraph of the template is highly recommended. The final document must accurately and unambiguously reflect the intentions and agreements specific to your client and their fiancé. For related content, see Postnuptial Agreement Negotiation Issues Checklist (NY).