1. Defining separate property - the property and assets you bring to a marriage are called separate property. As long as you keep your separate property separate from the property you and your spouse obtain together, the separate property continues to belong to you alone during and after your marriage. A postnuptial agreement should specifically identify which property is separate property for each of you. However, if you do not keep your separate property separate (in your own name only) then despite the postnuptial agreement the property may later be considered marital property and divided equally between you and your spouse in a divorce.

a) You received a large inheritance during your marriage, and you want to make sure it is not considered marital property. By law, inheritances are separate property as long as the funds are held in the recipient’s sole name, but if there is a postnuptial agreement it should confirm the inheritance is separate property.

b) You each brought an amount of cash to the marriage, which was deposited into a joint account. If you divorce later, those funds will probably be considered marital property.

c)  You own a house prior to marriage, and you and your spouse then live in the house during the marriage. You want to be sure that if you divorce, the house remains your sole property. A postnuptial agreement will help you do this, but you should nevertheless have kept sole title to the house unless you wanted to make a gift to your spouse.

2. Defining marital property - just as you can identify your separate property in a postnuptial agreement, you can identify property you want to be considered as marital property, even if it is actually separate property.

3. Establishing maintenance - a postnuptial agreement can establish maintenance for you or your spouse during the marriage, particularly if one of you is giving up a career to “raise the kids.” Also, a postnuptial agreement can establish what kind of support you or your spouse will pay to the other spouse during or after a divorce, or establish that there will be no support in case you decide to divorce.

4. Establishing support for children of a prior marriage - if you brought minor children into a marriage, and your spouse does not adopt them, a postnuptial agreement can help make sure the children are provided for if you and your spouse divorce.

5. Establishing pre-marriage debt - if you or your spouse brought substantial debt to the marriage, the postnuptial agreement can state that the debt stays with that spouse.

6. Child support and child custody/visitation - a postnuptial agreement cannot definitively address child support issues or child custody issues. Such issues must be resolved based on circumstances at the time of a separation or divorce. A court is obligated by New York law to determine whether the postnuptial agreement is in the best interests of a child, so issues of child support and custody will ultimately be reviewed by the court.

THOUGHT OF THE WEEK

“If you want to be alone, remember that the fence that shuts others out also shuts you in.”