February 2013 Archives

February 20, 2013

Preparing to Negotiate a Postnuptial Agreement

In previous blog posts we discussed the reasons why postnuptial agreements are becoming more popular and how to ensure that your postnuptial agreement is enforceable under New York law. If you've decided that a postnuptial agreement is something that you want to pursue, it is important to be adequately prepared for the negotiation process. These are some suggested steps that you should take before you begin:

• Write Down Your Own Goals And Concerns - It is easy to become overwhelmed by all of the questions you will have and to get distracted by all the issues that you may want to resolve. Likewise, it is easy to lose sight of the big picture and, due to the nature of the agreement, become overwhelmed by emotion. Taking time before negotiations begin to write down your long-term goals and concerns will help you maintain your focus on ensuring the best possible outcome for you and your spouse. It will also aid the negotiation process. By articulating a defined goal rather than becoming attached to a specific formula or percentage, both spouses are more likely to use creativity in finding a solution.

• Become Familiar With Your Assets And Liabilities - You cannot enter an agreement concerning your financial future without understanding your current financial circumstances. Familiarize yourself not just with your current property, debts, salary, and investments, but also what you and your spouse's potential earning capacity may be, any anticipated increase in asset values or liabilities, and any expected inheritance or trust payouts. You may find it helpful to consult with a financial advisor who has experience working with clients who are negotiating postnuptial agreements.

• Get Educated About The Law - Speak with an attorney who can educate you about the relevant laws related to spousal and child support, how assets are defined, valued and distributed, and what laws govern custody and parenting issues. Understanding your legal rights and obligations will give you a better idea of what a postnuptial can or cannot do for you and which issues may be easier to resolve than others.

• Get Educated About the Negotiating Processes Available - An attorney will also be able to help you decide what negotiating process will best serve you and your spouse. Do you and your spouse each feel comfortable advocating for your own needs and concerns? If so, mediation might be a good option. If one or both of you feels more comfortable having your attorney by your side during the negotiations, working in a collaborative manner might make the most sense. Or perhaps it would be too uncomfortable being in the same room as your spouse while you are negotiating such an agreement because emotions are running high. In that case, the best option for you may be to leave the communication to the lawyers. Speaking with an attorney who has negotiated postnuptial agreements via these different processes will help you determine what makes the most sense for you and your spouse.

• Hire Independent Legal Counsel - Even if you are proceeding by mediation, it is imperative that each spouse have his or her own attorney to consult with and review the agreement. An attorney can help clarify (and ensure compliance with) the laws of the state governing the postnuptial agreement, advise on the best way to divide the assets and liabilities at issue, and provide advice about how to negotiate for the outcome you desire. It becomes even more important to have your own lawyer if your spouse has one. This will help ensure equal bargaining power between the two of you. An even playing field is necessary not only to help both spouses feel confident during the negotiation process, but also in the event that the agreement winds up in court with one spouse claiming it was not entered into fairly.

These steps should assist you in coming to a fair and equitable agreement. Approached correctly, postnuptial agreements can be useful tools in preserving and strengthening a marriage and giving each party the peace of mind they need to feel secure about their futures.