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  1. #1
    Join Date
    Jun 2019
    Posts
    8

    Post Postnuptial Agreement

    My question involves a marriage in the state of: NY

    All of these questions are with regards to maximizing enforceability of a postnup.

    1. Obviously we’d get the agreement notarized but how necessary are witnesses or attorneys?

    2. Is mediation the way to go? Given that in arbitration or court of law a final decision I may disagree with is more binding.

    3. My wife and her parents report that she doesn’t have any assets, excluding personal and small household items. Meanwhile I have significantly more (savings, real estate, etc). Is it better to count some of her personal or small household items in the calculations of her assets so it’s less lopsided (otherwise her net worth would be listed as $0) or would it not matter in influencing the decision?

    4. Anything else I should know? For example, in general, how likely is a postnup like this enforceable in NY? Have I made a big mistake by not doing a prenup? Is my wife likely to get a significant portion of my assets if we divorce despite a postnup where we went the completely independent route of unshared assets/debts (at legalnature.com, this would be selecting options such as separate debts, tenants in common, separate property income, no joint credit card accounts, no spousal support, individual tax filings on separation, not using each spouse’s income for joint household expenses, etc).

  2. #2
    Join Date
    Mar 2013
    Posts
    17,217

    Default Re: Postnuptial Agreement

    Quote Quoting c.m
    View Post
    Have I made a big mistake by not doing a prenup?
    Yes, big time.

    How do you think this will play out?

    "Honey, let's write up a post-nuptial agreement that says you don't get anything of mine if we get divorced."

    Ring, ring, ring. "Hello, Mr divorce lawyer, my rat bastard husband just asked me for a postnuptial agreement. Help me take him to the cleaners."


  3. #3
    Join Date
    Jun 2019
    Posts
    8

    Default Re: Postnuptial Agreement

    Quote Quoting adjusterjack
    View Post
    Yes, big time.

    How do you think this will play out?

    "Honey, let's write up a post-nuptial agreement that says you don't get anything of mine if we get divorced."

    Ring, ring, ring. "Hello, Mr divorce lawyer, my rat bastard husband just asked me for a postnuptial agreement. Help me take him to the cleaners."

    Just want to clarify she’s already understood and agreed to the terms and we’ll get it notarized, and probably 2 witnesses if required. However opinions on another forum suggest this won’t make the agreement enforceable and to get (separate) attorneys so I guess we’ll have to reformulate the plan anyway. If the plan is reformulated I’d still want to ensure my pre-marriage assets and ideally post-marriage real estate (which I purchased with my own money, not via shared account, although we both live here) remain intact, although I understand the law in NY being an “equitable distribution” state is shady in this area and outcomes can be uncertain.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,104

    Default Re: Postnuptial Agreement

    Notarization and witnesses do NOT make the agreement enforceable. If the agreement is enforceable, then with rare exceptions it's enforceable whether it's notarized and witnessed or not. If it's not enforceable, a notary and witnesses do not make it so. It is the actual terms of the agreement and the way it is written that determine whether it's enforceable or not. For that you need attorneys.

    I have to agree with the poster on the other site who is suspicious of your motives, given how determined you are that your wife not have her own attorney to protect her rights and interests under the law of your state. If she agrees to something without knowing that under the law she is entitled to more, how is that equitable? Or fair?

    Oh, but I forget, it's all about what you want...

  5. #5

    Default Re: Postnuptial Agreement

    Quote Quoting cbg
    View Post
    Notarization and witnesses do NOT make the agreement enforceable. If the agreement is enforceable, then with rare exceptions it's enforceable whether it's notarized and witnessed or not. If it's not enforceable, a notary and witnesses do not make it so. It is the actual terms of the agreement and the way it is written that determine whether it's enforceable or not. For that you need attorneys.

    I have to agree with the poster on the other site who is suspicious of your motives, given how determined you are that your wife not have her own attorney to protect her rights and interests under the law of your state. If she agrees to something without knowing that under the law she is entitled to more, how is that equitable? Or fair?

    Oh, but I forget, it's all about what you want...
    For that very reason I really doubt that a judge would enforce the contract...the wife is being bamboozled.

  6. #6
    Join Date
    Jun 2019
    Posts
    8

    Default Re: Postnuptial Agreement

    You haven’t met my wife. She’s certainly no angel. Anyway I did suggest we’ll look into attorneys now as that’s what the consensus is; that’s why I was here, to gather a consensus.

    The reason for originally being hesitant about going the attorney route is twofold, 1) thought maybe it wasn’t necessary, but looks like the consensus is it is, so fine, 2) I though there was a chance her attorney would try to get her to claw her way into the portion of my assets that by state law she originally wouldn’t have been entitled to, like premarital stuff.

    But like I said as long as my premarital assets and ideally real estate (which she lives in but neither purchased nor co-owns) are protected I should be fine.

    Thanks for the responses.

  7. #7
    Join Date
    Mar 2013
    Posts
    17,217

    Default Re: Postnuptial Agreement

    Quote Quoting c.m
    View Post


    But like I said as long as my premarital assets and ideally real estate (which she lives in but neither purchased nor co-owns) are protected I should be fine.
    What you aren't understanding is the difference between ownership and marital interest.

    Your ownership is protected but she could have a marital interest in the "value" of any equity that has built up during the marriage.

  8. #8
    Join Date
    Oct 2006
    Posts
    15,663

    Default Re: Postnuptial Agreement

    Quote Quoting c.m
    View Post
    You haven’t met my wife. She’s certainly no angel. Anyway I did suggest we’ll look into attorneys now as that’s what the consensus is; that’s why I was here, to gather a consensus.

    The reason for originally being hesitant about going the attorney route is twofold, 1) thought maybe it wasn’t necessary, but looks like the consensus is it is, so fine, 2) I though there was a chance her attorney would try to get her to claw her way into the portion of my assets that by state law she originally wouldn’t have been entitled to, like premarital stuff.

    But like I said as long as my premarital assets and ideally real estate (which she lives in but neither purchased nor co-owns) are protected I should be fine.

    Thanks for the responses.
    That Affidavit of Support that you signed when you sponsored her to come to the US throws your whole idea of a post nup into disarray. I won't go into detail on this forum, because I already did it on the other forum you posted on. But not mentioning that in your very first post was kind of burying the lead.

  9. #9
    Join Date
    Jun 2019
    Posts
    8

    Default Re: Postnuptial Agreement

    The affidavit and gc won’t be approved until at least 2020 based on current processing times so still plenty of time to withdraw it in which case it shouldn’t have any effect.

    So much for the recommendations to get attorneys. I recommended legal representation to her multiple times, particularly if she wanted to make changes to wording in the default template like she suggested, but she insisted she doesn’t want any lawyers for the postnup, and now doesn’t want to sign it at all. So I guess in divorce we’d be going the traditional route which would probably only be a minor blip to my assets anyway.

    I think she may have large debts but fortunately if she does it’s all on her own accounts (not joint), weren’t for marital purposes and she didn’t notify me (she outright answered me, multiple times, she has zero debt) so the chance of me being responsible for these is nil.

    Now I gotta juggle whether and when to send the I-864 withdrawal letter out. I’ll wait but it seems she’s pretty close to giving up on the marriage this time. If I receive divorce papers from my wife, I‘m wondering if at that time I still have time to send the I-864 withdrawal letter and get it withdrawn before the divorce finalizes, such that I wouldn’t have to support her via the affidavit indefinitely upon divorce, or if there’s a chance that wouldn’t work and I should send the letter earlier if divorce seems impending.

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