POST-NUPTIAL AGREEMENTS

What is a post-nuptial agreement?

Post-nuptial agreements are made after marriage between two people who are still married. Post-nuptial agreements take the form of either separation agreements, property settlements in contemplation of a separation or divorce, or property settlements where there is no intention of the parties to separate.

I signed a separation agreement with my spouse one year ago. I am unhappy with its terms. How can I get out of it?

Once signed, separation agreements are extremely difficult to void. If you are disturbed by some aspect of a proposed separation agreement, you must address your concerns before you sign it. Nonetheless, there are some legal grounds for voiding a separation agreement, including fraud, undue influence, duress and overreaching. A court may review the maintenance provisions of a separation agreement if there is a demonstration of extreme hardship. Still, you should not enter into a separation agreement thinking that you will be able to void it at some future time. If you have concerns, you should address them before you sign the separation agreement.

My spouse is not living up to the obligations of the separation agreement we signed one year ago. What recourse do I have? How does this affect finalizing the divorce?

Various enforcement remedies, such as money damages and wage garnishment (when a court orders an employer to withhold a specific portion of the paycheck and send it directly to the person owed money, until the debt is resolved), are available to a party whose spouse has failed to comply with the terms of a separation agreement, particularly where the separation agreement has been included or referenced in a divorce judgment.

Much less frequently, certain obligations contained in a separation agreement may be deemed to be so important and so central to the other spouse's willingness to enter into the agreement that the failure to perform them may provide grounds to rescind or void the agreement. There are additional, speedier enforcement remedies available to a spouse who has entered into a separation agreement or stipulation of settlement that incorporates the terms of the agreement or stipulation and provides that the terms shall “survive” (not be cancelled by) the judgment of divorce.

The spouse who seeks to terminate the marriage on the grounds that the couple has been living apart pursuant to a separation agreement must show substantial compliance with the agreement (i.e., compliance with the main or essential requirements).

Is a separation agreement necessary in New York State before a divorce is granted or can a divorce be granted without one?

A separation agreement is not necessary for a divorce to be granted. Spouses who wish to divorce and cannot agree to a separation agreement may instead seek a divorce on "no-fault grounds" (the irretrievable breakdown of the marriage for at least six months). See the "Grounds For Divorce" section of this guide for more information on "fault" and "no-fault" divorces.

My spouse and I signed a separation agreement one year ago. What happens now? Are we automatically divorced?

No, you are not automatically divorced. If you and your spouse have been separated for one year and have abided by the separation agreement during that time, you now both have grounds for a divorce. One of you must file for divorce and provide proof that you performed all the terms and conditions of the separation agreement. Although this process is often called a “conversion divorce”, the separation agreement does not automatically convert to a divorce after the one year period.