Benefits and Drawbacks of Postnuptial Agreements

A postnuptial agreement is similar to a prenup, a popular way to decide money and property issues at the start of a marriage rather than leave them for resolution during a divorce. Postnups — created after the parties are married — work much the same as prenups, but they are subjected to a higher level of scrutiny by the courts.

A postnuptial agreement can serve multiple purposes. For example, it is a useful tool for a spouse who owns or holds an interest in a business that could suffer disruption in the case of a divorce. An ownership stake in a business can be considered marital property that must be equitably divided by a divorce court. The most effective way to prevent that outcome is to have a contractual agreement that specifies what rights, if any, the non-owning spouse has in the business.

A postnup can decide in advance what property each spouse will keep upon divorce and what financial support one may be required to pay to the other. This often removes the most difficult to solve issues in a divorce, which means the divorce process becomes far less expensive.

While postnuptial agreements offer several advantages, they also have some drawbacks. New York courts are suspicious of postnups and give them a high level of scrutiny. This is because one spouse may be giving up substantial property rights and receiving little in return. A court will may decline to enforce a prenuptial agreement if there is an imbalance of negotiating power, making the contract unconscionable. The postnup will also be found void if a spouse has misrepresented material facts or committed fraud in getting the other spouse to sign.

If you are contemplating a postnuptial agreement with your spouse, it is essential that each of you are represented by capable counsel. The agreement must be fair on its face and complete and detailed as to each spouse’s rights and responsibilities. It also must reflect that each spouse is fully aware of what they are doing and that they consider the agreement mutually beneficial.

The Law Offices of Randy S. Margulis represent clients in the Buffalo area in various family law matters, including prenuptial and postnuptial agreements. Our offices are conveniently located in Williamsville and downtown Buffalo. Call 716-886-9600 or contact us online to schedule a meeting.