New York Postnuptial Agreements: Moving Past Betrayal

browse.jpegIt is not uncommon to hear stories about betrayal in a marriage. Whether it makes national headlines or involves the marriages of our neighbors and friends (or maybe even our own marriages), we may feel outraged, embarrassed, or sympathetic for the spouse that was betrayed. Over the years, I have had clients come to me after a betrayal seeking to stay in the marriage. They want to protect themselves from any further harm.

Even if trust has been broken, both spouses may want to pick up the pieces, work through problems, and move forward with the marriage. A postnuptial agreement (“postnup”) is a flexible tool to help a married couple rebuild trust and create goals for a fulfilling life together. In other words, it can be a creative way to help make the marriage work.

A postnup is a legally enforceable private agreement that a couple enters into after marriage (unlike a prenuptial agreement, which a couple executes prior to marriage). Generally, it is an opportunity for a couple to create understanding about important financial matters. Sometimes, it is the first time both spouses fully understand the family financial picture and make explicit the financial (and other) terms of the union.

The postnup can cover a range of issues, such as the parties’ financial goals, paying off debts, and the distribution of property and other assets, including the martial residence. Creating a postnup can be a way to re-build trust in a marriage and establish a solid financial plan. When forming a postnup, it is crucial that each party honestly communicates his or her needs to the other party.

Talking openly about money, for example, can be difficult if you and your spouse have not done so already. However, an attorney trained in mediation and collaborative law can facilitate the discussion and help you and your partner tackle the financial issues that need to be addressed. When both parties are on the same page and in agreement on financial matters, it provides the couple with a sense of security and makes it easier to move forward in the marriage.

When there is a breach of trust, it does not necessarily mean the marriage is over. The creation of a postnup allows the spouse that was betrayed to voice his or her needs, which can be empowering. It also provides the person an opportunity to exercise a certain level of control and may restore his or her place–and faith–in the marriage. Where both spouses want the marriage to continue, creating a postnup that addresses the couple’s finances is a viable and constructive solution to help preserve the marriage.

A postnup is a contractual agreement between two parties. Therefore, a legally enforceable postnup must follow certain requirements in order for it to be held valid under the law. Both parties must have capacity to enter into the agreement. Generally, a valid postnup must also be in writing and shall contain the written signatures of each party. There also must be adequate consideration in order for a postnup to be deemed legally enforceable. Consideration is where one party agrees to give or do something in exchange for a promise or the performance of an act by the other party.

It is important to note that postnups are governed by state law and the requirements under each state may differ. The general contract requirements mentioned above are not exhaustive and certain states may require parties entering into a postnup to follow additional rules. Therefore, it is advisable that you speak with an attorney before creating a postnup to ensure it is held valid in the state where you live.