Postnuptial agreement

[c.m]

What is the name of your state? New York

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).

 

[HighwayMan]

You really should be dealing with an experienced divorce/family law attorney to draw up the agreement. Doing it yourself is not a good idea.

A licensed attorney will be able to answer all of your questions. Getting this done with an attorney shouldn't cost all that much and will avoid many problems.

By the way - mediation for WHAT? Are you planning on getting a divorce already?

 

[c.m]

You really should be dealing with an experienced divorce/family law attorney to draw up the agreement. Doing it yourself is not a good idea.

A licensed attorney will be able to answer all of your questions. Getting this done with an attorney shouldn't cost all that much and will avoid many problems.

By the way - mediation for WHAT? Are you planning on getting a divorce already?

Mediation for disputes concerning the agreement. Not planning a divorce yet but preparing for that situation. I’m doing it myself using the postnuptial agreement template at legalnature.com which generates the agreement based on responses. I checked with a lawyer who gave me some general advice and said the generated agreement at least looks drafted well, so I guess now it’s just a question of enforceability that we’d want to consult divorce/family law attorneys.

 

[xylene]

There is nothing to "mediate" if your wife has any brains.

 

[Zigner]

I hope you both have your own (separate) legal representation...

 

[Just Blue]

Mediation for disputes concerning the agreement. Not planning a divorce yet but preparing for that situation. I’m doing it myself using the postnuptial agreement template at legalnature.com which generates the agreement based on responses. I checked with a lawyer who gave me some general advice and said the generated agreement at least looks drafted well, so I guess now it’s just a question of enforceability that we’d want to consult divorce/family law attorneys.

As I said on the other site... You and your wife both need your respective attorney to do this for you.

 

[c.m]

My wife has already understood and agreed to the terms of the agreement. And we’ll get it notarized and probably 2 witnesses if that’s required. Would the main reason for having (separate) attorneys to ensure it’s enforceable? The thing is if we had an attorney, particularly separate attorneys, I’m sure the/her attorney will try to skew the agreement to be more in her favor. So I guess it’s risk it not being enforceable or risk losing a substantial portion of my net worth to a huge undeserved payout.

 

[not2cleverRed]

My wife has already understood and agreed to the terms of the agreement. And we’ll get it notarized and probably 2 witnesses if that’s required. Would the main reason for having (separate) attorneys to ensure it’s enforceable? The thing is if we had an attorney, particularly separate attorneys, I’m sure the/her attorney will try to skew the agreement to be more in her favor. So I guess it’s risk it not being enforceable or risk losing a substantial portion of my net worth to a huge undeserved payout.

There is a phrase: penny wise, pound foolish.

If she agrees, and it's not enforceable, who cares? That's why you hire a lawyer in the first place. You might find that you are worrying about nothing, if you do your accounting correctly. Or you may find that legally, what you are asking for is very unreasonable.

You do understand that everything you earn during the marriage is a marital asset? That means both of you have an equal claim to it. But hey, if you are going to claim that not even her clothes are hers, not even her engagement ring, and that she is a really worthless person who brings nothing to the marriage but her naked body, I predict an eye opening divorce if you stay married for more than a year or two.

 

[Just Blue]

My wife has already understood and agreed to the terms of the agreement. And we’ll get it notarized and probably 2 witnesses if that’s required. Would the main reason for having (separate) attorneys to ensure it’s enforceable? The thing is if we had an attorney, particularly separate attorneys, I’m sure the/her attorney will try to skew the agreement to be more in her favor. So I guess it’s risk it not being enforceable or risk losing a substantial portion of my net worth to a huge undeserved payout.

You want this enforced? Have separate attorneys...otherwise it's worth bupkus.

How much is your pre-marital worth? What is you worth now?

 

[Just Blue]

There is a phrase: penny wise, pound foolish.

If she agrees, and it's not enforceable, who cares?

You do understand that everything you earn during the marriage is a marital asset? That means both of you have an equal claim to it. But hey, if you are going to claim that not even her clothes are hers, and that she is a really worthless person who brings nothing to the marriage but her naked body, I predict an eye opening divorce.

Love to be a fly for that one!

 

[cbg]

A notary's stamp and seal means exactly one thing; that the notary has confirmed that the signatories are the people they claim to be. It does not make the document enforceable, if that is what you had in mind.

Why shouldn't her attorney try to skew the agreement more in her favor? That's what your attorney would be doing for you.

 

[c.m]

The pre-marriage assets are much more substantial than post-marriage, with the exception of post-marriage real estate I purchased with my own money (wasn’t via shared account though we both live here) so if I had to forgo something I would still want to keep the pre-marriage assets and real estate intact. But I understand that the law in NY being an “equitable distribution” state is a bit shady in this area and outcomes aren’t certain. Anyway if an agreement won’t be enforceable without attorneys I guess we’ll have to reformulate the plan.

 

[Just Blue]

The pre-marriage assets are much more substantial than post-marriage, with the exception of post-marriage real estate I purchased with my own money (wasn’t via shared account though we both live here) so if I had to forgo something I would still want to keep the pre-marriage assets and real estate intact. But I understand that the law in NY being an “equitable distribution” state is a bit shady in this area and outcomes aren’t certain. Anyway if an agreement won’t be enforceable without attorneys I guess we’ll have to reformulate the plan.

The very fact that you are so reluctant for your wife to have her own attorney... who will insure her interests aren't trampled upon...makes me wish your wife will find this site.

 

[stealth2]

Denmark. Stinky.

 

[c.m]

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.