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Makes sure your postnup will hold up in court

Imagine you're experiencing problems in your marriage. Maybe your spouse was unfaithful to you and now he or she is trying to beg for your forgiveness. When you continue to refuse to drop the matter, your spouse suggests that you sign a postnuptial agreement. According to your spouse, the postnup will serve as a way of renewing your vows. It also offers a promise of fidelity, which if broken will result in you receiving a certain sum of money.

This kind of postnuptial agreement is more common than you might think, but is it legitimate? Will an agreement like this actually hold up in court, or will a judge rule that it's invalid if your spouse later decides to challenge it?

These are the kinds of questions that a responsible person should ask before signing a postnup. Historically, postnups were never viewed as valid legal documents. According to common law dating back to the 1800s, post-marital contracts were not legally binding between a husband and wife. This is because, historically, husband and wife were not two people; rather, they were two individuals who had merged into one.

These days, the story is quite different. In New York, a postnuptial agreement will -- in many cases -- be honored by the court if you can answer "yes" to the following three criteria:

  • Were all assets fully disclosed in the postnup?
  • Was the postnup signed without duress?
  • Does the postnup treat both parties fairly?

The above three terms are a very simplistic explanation of the complex issues that come into play when drafting a valid postnuptial agreement. Determining what a judge would consider to be "fair" is essential, but each situation is unique. As such, if your marriage could benefit from a postnuptial agreement, be sure to draft this document carefully and follow all appropriate legal procedures.

Source: The Spruce, "Postnuptial Agreements," Sheri Stritof, accessed Dec. 1, 2017

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