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Do I need a lawyer for my postnuptial agreement?

Posted on December 12, 2019

In S.B. v. B.B., N.Y.L.J., November 22, 2019 (Sup.Ct. Nassau Cty, November 6, 2019) the Nassau County Supreme Court determined a postnuptial agreement was invalid due to being unconscionable and unreasonable. The parties married in 2004 and in 2008 the wife signed a postnuptial agreement prepared by her husband’s attorney. The husband did not explain the document to the wife nor did the wife have an attorney. The wife felt forced to sign as she did not want to be kicked out of the marital home, a threat as she did not have a job and had two children from her previous marriage living in the home with her. The agreement itself waived all the wife’s rights to all marital property and funds while requiring the wife to make monthly payments despite her lack of a job.

The court found the postnuptial agreement to be overreaching and unfair. It’s unsurprising it was found invalid. When drafting a postnuptial agreement, the parties should try to focus on the following:

  1. Both parties need to be given the agreement ahead of time.  The document needs to be given full consideration by those involved. A document given for review last minute has a better chance of being found invalid.
  2. Neither spouse can be forced into signing the agreement. A pressured signing, where a party feels coerced into signing it or something negative will occur, is very likely to be declared invalid. Both parties need to agree to it, after full consideration, and consent under their own free will.
  3. There doesn’t need to be fair distribution of assets; however one party can’t take everything and leave the other nothing.
  4. Both parties should have independent legal representation. There should be a thorough review of the document; the attorney should explain what the different parts of it mean and what each person is entitled to under the law. Courts look poorly upon cases where one party speaks with an attorney but the other does not.

While no couple plans on divorcing, if it does happen, a well drafted postnuptial agreement will protect both parties. If you are considering a postnuptial, contact the Law Office of Vivien I. Stark, P.C., an experienced matrimonial law firm, today at 212-349-1600.