What Can and Can Not Be Included in Postnuptial Agreements

If you or your spouse are experiencing conflict due to financial or other concerns during your marriage, creating a postnuptial agreement could bring you both some relief by providing security should the marriage end. But you may wonder: what topics can and can’t be discussed in a postnuptial agreement?

What You Can Include in a Postnuptial Agreement

Your postnuptial agreement can outline how you and your spouse would like to approach any issues within your marriage or in the event of divorce or death. While this list is not comprehensive, some of the most common topics to cover in postnuptial agreements include the following.

Defining Marital Property vs. Separate Property

In New York, marital property is defined as property that one or both spouses acquire during the marriage. Separate property is defined as property one spouse acquired before the marriage or inherited or received as a gift during the marriage.

In a contested divorce, the court would split your marital property in a way that they determined was “equitable”. But what a judge sees as equitable and what you and your spouse see as equitable could be vastly different.  A postnuptial agreement gives you and your spouse control to determine that issue.

For instance, some married couples prefer to keep investments, real estate, and businesses that were acquired during the marriage in the possession of the titled owner, even though those assets are legally seen as marital property. A postnuptial agreement will ensure that your wishes will be followed when the marriage ends.  And let’s be clear:  all marriages end whether by death or divorce.

A postnup also allows you to decide how to divide different categories of marital property in a way that feels equitable to you and your spouse. You may choose to divide the value of real estate equally but divide businesses or retirement accounts in different proportions.

Child Custody, Parenting Agreements, and Child Support

You and your spouse can agree on child support, child custody, and parenting schedules in your postnup if you currently have children together. You'll need to examine the parenting agreements at the time of the divorce to make sure they meet  your child’s interests, but discussing these issues in your agreement can help you avoid unnecessary conflict later.

Support For Children From a Previous Relationship

If you or your spouse has children from before your marriage, there could be resentment about the amount of marital money being spent to support those children pursuant to the terms of the spouse’s prior divorce.  A postnup can make it clear how much money will be spent and whether the spouse without children will be entitled to a credit at the end of the marriage for their share of marital funds that were expended supporting the children.

Spousal Support

Are you or your spouse dependent on the other to provide the marital lifestyle to which you’ve become accustomed? Does one of you earn substantially more than the other? If so, make sure your postnup addresses whether spousal support will be paid and how the amount and duration will be determined upon divorce. Fights over spousal support are one of the leading causes of litigation. You can also waive spousal support in your agreement to prevent either person from claiming it in a divorce.

Debts

If you or your spouse has significant debts from before the marriage, or if one of you unilaterally acquired debts during the marriage that has caused conflict between you, you can use your postnuptial agreement to outline how those debts will be paid for both during the marriage and afterward. For example, perhaps one party acquired substantial debt due to excessive spending or gambling.  Your postnup could state that you will pay off that debt together during the marriage by taking a Home Equity Line of Credit against your home, but if the marriage ends, the debtor spouse will be solely responsible.

What Can Not Be Included in a Postnuptial Agreement?

Other than agreeing to something that would rise to the level of a crime, no topics are off limits for a postnuptial agreement in New York. If you and your spouse would like to approach any aspects of divorce differently from what the law would dictate, you can outline those differences in your postnup.

However, keep in mind that you should not enter a postnuptial agreement with the intention of divorce. This agreement should not be a form of divorce planning — instead, it should dictate terms you and your spouse can use to give your marriage a fair chance and feel secure in your partnership.

Even if you believe divorce may be on the horizon, your postnuptial agreement should set the terms you need to stay married for the time being.

Contact Vacca Family Law Group

Do you need assistance creating a postnuptial agreement or a prenuptial agreement? Contact Vacca Family Law Group today at 212-768-1115.