When I tell people that I practice matrimonial law, they often think that the only thing I do is help people get divorced. While a large part of our practice does involve representing spouses in divorce proceedings, our practice also encompasses helping married clients who want to stay that way.
Sometimes spouses have differences that they want to address and commit to resolving in a formal way, or perhaps they want to address a change in financial circumstances and plan for how those circumstances will be handled in the future. If the goal is to stay married but also legally resolve certain issues, a “post-nuptial” agreement is the solution.
A “post-nuptial” agreement is an agreement that is entered into after the marriage. These agreements, if properly signed, are legally binding contracts that enable spouses to spell out the terms that they want to address.
For example, suppose the wife inherits a large sum of money. Under New York law, this money is the wife’s separate property. Let’s also suppose that the couple would like to buy a vacation home with the wife’s inheritance but for various reasons the husband’s name cannot be on the deed.
If the wife buys the vacation home with her inheritance and does not add the husband to the deed, then the vacation home is also considered the wife’s separate property. This means that if there were ever a divorce or separation, the husband would not be entitled to share in the value of the vacation home. This may not sit well with the husband, particularly if the vacation home will require a lot of upkeep on his part. As a result, the husband may be reluctant to go along with the wife’s plan.
With a post-nuptial agreement, the couple could agree on how the vacation home will be treated if there is a divorce or separation. For example, they could agree that the vacation home will be treated as marital property, which would enable the husband to share in its value. Or, the couple could agree that the vacation home will remain the wife’s separate property but the husband will receive a larger share of some other marital asset(s).
Post-nuptial agreements offer many possibilities. They can be drafted to address a single issue (as in our example above), or several issues at a time. People can enter into these agreements for a myriad of reasons, including distribution of assets and debts; estate planning; or determining financial responsibilities during the marriage. They can be particularly helpful to those people who, while not happily married, cannot divorce or separate because of the presence of children or health or financial issues.
Marital discord does not always have to end with the marriage being dissolved. If you would like more information about post-nuptial agreements and whether they are appropriate for your particular situation, we invite you to contact our office for a consultation.
 There are exceptions to this that are not addressed in this article.