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Postnuptial agreement

Discussion in 'Division of Marital Property' started by cmh., Jun 16, 2019.

  1. cmh.

    cmh. Law Topic Starter New Member

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    Jurisdiction:
    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).
     
  2. army judge

    army judge Super Moderator

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    If you are serious about trying to protect ASSETS after a marriage hire yourself a lawyer.

    Why?

    You are legally exposed already.
     
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  3. justblue

    justblue Well-Known Member

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    Base on what you have posted the post-nup won't be enforceable. I strongly suggest that both you and your wife go to you respective attorneys and do this right.
     
  4. cmh.

    cmh. Law Topic Starter New Member

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    Will consider it but for a clearer picture wondering why you’re so sure it’s not enforceable? Is it due to the imbalance in assets and/or something else?
     
  5. zddoodah

    zddoodah Well-Known Member

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    Among other things, an attorney can advise you whether witnesses and notarization are needed. Also, and while it was decided in another state, look up the case about Barry Bonds's prenuptial agreement to learn why each side being represented by an attorney may be extremely important.

    There is no one-size-fits-all answer to this incredibly abstract question.

    Huh? There's no court action or arbitration that can require two married folks to enter into a postnuptial agreement.

    I disagree. However, the OP's post demonstrates a level of knowledge such that proceeding without legal counsel would be quite ill-advised.
     
  6. justblue

    justblue Well-Known Member

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    At the risk of annoying you ...I based that answer not only on what he posted here, but also what he posted on two other sites. If you like I can provide you with the link to the most informative of those threads. :)
     
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  7. Zigner

    Zigner Well-Known Member

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    In the OP's state, notarization (or other proper certification) is required, but witnesses are not.

    G.S. 52-10


    I'm not sure what you're disagreeing to, but I'll say that, while not specifically mentioned in NC statutes, if the agreement is lopside and one (or both) parties we not represented by independent counsel, then it certainly does give grounds for the agreement to be ruled invalid by the court.
     
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  8. justblue

    justblue Well-Known Member

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    OP is also sponsoring his wife. ;)

    Again...info OP provided on another site.
     
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  9. zddoodah

    zddoodah Well-Known Member

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    I disagreed with the absolute and unequivocal statement that the postnup contemplated by the OP would be unenforceable. There's no way to opine intelligently about that based on the limited info provided here.
     
  10. Zigner

    Zigner Well-Known Member

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    Fair enough :)

    As was pointed out, the OP has provided additional information in other places that fill in the blanks a bit more.
     
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  11. cmh.

    cmh. Law Topic Starter New Member

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    Regarding the pending affidavit of support in relation to the postnup, I assume that won’t matter when support has ended? e.g. if i864/AOS is withdrawn or she becomes a US citizen
     
  12. Highwayman

    Highwayman Well-Known Member

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    It's NY, not NC
     
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  13. Zigner

    Zigner Well-Known Member

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    Ohhhhhhhh


    Nevermind...
     
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  14. justblue

    justblue Well-Known Member

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    Were you channeling Rosanna Rosannadanna??
     
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  15. cmh.

    cmh. Law Topic Starter New Member

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    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.
     
  16. army judge

    army judge Super Moderator

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    Yes, that will be another problem looming in your future.

    Once a person signs one of those agreements with the government, he/she can be stuck feeding a parasitic leech for decades!

    Good luck, buddy.
     
  17. cmh.

    cmh. Law Topic Starter New Member

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    My wife snuck a flight out of NY back to her home country without advance parole, so she’s abandoned her green card application. I sent an I-864 withdrawal letter to cover all bases per advice. Someone suggested I investigate whether the possibility that she stays out of the country for a long time means my marital assets have the option of greater protection than through a no fault divorce. Obviously when I proceed with divorce I’ll be getting an attorney but just thought I’d get a head start on my research. Thanks.
     
  18. Zigner

    Zigner Well-Known Member

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    Did you have a question?
     
  19. cmh.

    cmh. Law Topic Starter New Member

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    I'm starting the divorce process now and due to her leaving the US this way and living abroad now I will at least try a consultation with an attorney to see if this divorce can be done more painlessly than usual. I was originally thinking of going no-fault but it seems even that process will be complicated by her overseas residential status. Thankfully in any case I acquired most of my assets before divorce. But knowing her I don't know if she'll try to get something anyway. Found some general info on overseas process, e.g. at

    How to Get a Divorce When Your Spouse Isn't a U.S. Citizen and Left the Country[/URL]. I'll consult with the relevant sources and attorneys but meanwhile if anyone here knows anything specific to divorcing an Indian citizen, any info could help.
     
  20. Zigner

    Zigner Well-Known Member

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    Your divorce is based on the law in the state in which you reside.
     

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