Post-Nuptial Agreements can serve a similar function to determine ownership of property but because they are created after the marriage, they maintain a different and higher standard than a Pre-Nuptial Agreement because with the marriage a marital partnership has now been established.
As with the formation of any contract, having the appropriate counsel and representation is essential to ensure a party's rights are protected, that they are fully informed, and they are entering the contract with a full understanding of its ramifications and that they are doing so of their own free will, among other factors.
Our firm has addressed such issues before the Court.
Post-Nuptial Agreements are agreements made any time following the marriage and carry many of the same requirements of a Pre-Nuptial Agreement, however, the Court scrutinizes them even more carefully given that the parties are already married and, as a result, have a fiduciary relationship which includes certain obligations to each other emanating from the marital relationship. One reason is that a party no longer has the option of not going forward with the marriage to decline the pre-nuptial agreement the other party seeks. The financial disclosure requirements are also viewed more strictly because of that fiduciary relationship. Additionally, in the case where the parties did not enter into a Pre-Nuptial agreement, but one party seeks a Post-Nuptial Agreement, the Court must consider the fact that because the parties were already married, they are already entitled to certain rights under New York State Law as to the division of marital property and support which have already accrued following the marriage.
Some couples who have a Pre-Nuptial Agreement seek to have it converted to a Post-Nuptial Agreement. However, a Post-Nuptial Agreement cannot be negotiated prior to the marriage, which is when the Pre-Nuptial is negotiated. The Post-Nuptial Agreement requires the same full financial disclosure, negotiations, representation and execution following the marriage.
In all cases the Courts view these documents as contracts and they will be scrutinized and their validity determined as such