POST NUPTIAL & SEPARATION AGREEMENTS

In New York, parties are free to enter into agreements prior to (antenuptial agreements) as well as during the marriage (post nuptial and separation agreements), provided they comply with the statute which requires that it be in writing, signed by the parties, and their signatures have to be acknowledged in a manner required for the recording of a deed. If the agreement meets those requirements, it can deal with such issues as testamentary provisions, waiver of inheritance rights provided by law, equitable distribution of marital property, the amount and duration of maintenance, and other matrimonial issues, including custody and child support (subject to certain statutory restrictions) provided the agreement is fair and reasonable when made and not unconscionable at the time of the entry of judgment. Once the parties are divorced, an agreement does not need the same formalistic requirements.

New York courts have held that married parties have a fiduciary relationship to each other which necessitates fair dealing. In the event of fraud or duress, the Courts are prepared to set aside the agreement. Frequently this occurs when a spouse has not been candid with the other and failed to provide sufficient financial information or has misrepresented such information.

New York favors settlement of matrimonial matters and thus is reluctant to set aside settlements, whether written or settlements made in court on the record. An issue not yet resolved is whether a settlement in court, on the record, is valid in a matrimonial action or is it required to be in writing, signed and acknowledged. The four judicial departments are in conflict on this issue and final resolution must await a determination by the Court of Appeals, New York’s highest court.