The Law and Legal Recognition in New York State

Under the Statute of Frauds, a prenuptial agreement is valid only if it is completed prior to marriage. After a couple is married, they may draw up a postnuptial agreement.

Postnuptial agreements must have all the elements of all contracts and five additional elements, which are typically in a  valid postnuptial agreement:

1. It must be in writing (oral promises of this kind are always unenforceable).

2. It must be executed voluntarily.

3. It must be done with full and/or fair disclosure at the time of execution.

4. It must not be unconscionable.

5. It must be executed by both parties (not their attorneys) “in the manner required for a deed to be recorded”, known as an acknowledgment, before a notary public.

Postnuptial agreements only came to be widely accepted in the United States in the later portion of the 20th century. For many years, US jurisprudence followed the notion that contracts, such as a postnuptial agreement, could not be valid when executed between a husband and wife. The inability of a husband and wife to contract with one another was due to the concept of marital unity, at the time of marriage, husband and wife become a single entry or person. In addition, since one may not enter into a contract with one’s self, a postnuptial agreement would be invalid. Even after the US courts began to reject marital unity as a legal theory, postnuptial agreements were rejected as being seen to encourage divorce.

It was only in the 1970s that postnuptial agreements were met with wide acceptance in the United States. The motivating factors considered to be behind this acceptance was the increase in divorce during the ­1970s, along with the implementation of so-called “no fault” divorces, granting divorces for any reason. Upon the wave of legislative and statutory changes, postnuptial agreements began to find acceptance.

Within the body of law in the US, there are typically three kinds of postnuptial agreements:

• An agreement that will provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme.

• Agreements that are for all purposes separation agreements. These agreements are entered into to avoid the time and cost of divorce proceedings. The disposition of property, other marital assets, custody, alimony and support and the like are agreed to by the marital partners upon separation and the agreement later, usually, incorporated into the final divorce decree.

• The one most fixed in the mind of the public, are agreements that are an attempt to affect rights in a future divorce, usually limiting or waiving alimony and/or support and the division of marital property, which includes property obtained before and after the marriage.

State laws vary in their treatment of such agreements but here in New York, the state will enforce postnuptial agreements. Domestic Relations Law §236(B)(3) states that three conditions must be met in order for the agreement to be valid and enforceable.

The first is that the agreement must be in writing; second it must be subscribed to by the parties and; third it must be proven or otherwise acknowledged in the same manner as a deed or other legal record. However, New York General Obligations Law §5-311 voids any postnuptial agreement that has the intent to relieve either the husband’s or wife’s obligation to support the other in a manner to prevent the other from becoming a “public charge.”

THOUGHT OF THE WEEK

“People that say things that hurt others, only act on pain they feel themselves.”