If you and your spouse have signed a prenuptial, post-nuptial or separation agreement, you can enforce it like any other contract. These marital agreements are generally binding on the parties, provided the legal requirements are met. Therefore, if your spouse doesn’t comply with your agreement, you can go to court. However, before you bring a lawsuit, there are steps you can take to resolve the issue without litigation.
What Is a Prenuptial or Post-Nuptial Agreement?
Both a prenuptial and post-nuptial agreement address the same types of issues, including property distribution, spousal support, and estate rights in the event you legally separate, divorce, or one of you dies.
The difference between the two agreements is when they are executed. A prenup is signed before you marry; a post-nup after the wedding. For either agreement to be legally valid under New York law, it must be in writing, signed by both parties, and properly acknowledged in the same manner as a property deed is recorded.
What Is a Separation Agreement?
Separation agreements are used when spouses decide to live apart with or without divorcing and want to formalize how they will handle financial and child custody issues while they are separated. The agreement must address the same issues that would be decided in a divorce matter, including the division of marital assets, spousal support, child support, child custody and parenting time. It should also address estate rights if a spouse dies while the couple is separated. Couples are not required to divorce at any time. However, if they do divorce, the terms of the separation agreement will be incorporated into their divorce decree. One side need only seek divorce in this event.
What Should I Do If My Spouse Is Not Abiding by the Terms of Our Agreement?
The first step you should take is to contact an attorney to discuss the situation. Your attorney may recommend speaking with your spouse about the problem and determining whether he or she intends to comply. For example, your spouse may just be looking for extra time.
If your spouse doesn’t respond or continues to violate your agreement, your attorney can send a letter to your spouse stating that you have retained legal counsel and your spouse should also retain an attorney. This can be the impetus for your spouse to act, either by complying with the agreement or seeking court action to challenge or modify the agreement, which may or may not be successful depending upon the circumstances operating at the time.
The last resort is to litigate the matter. If you aren’t intending to divorce, you may want to sue for breach of contract. However, if you are divorcing, you can enforce your agreement as part of your divorce action without starting a new lawsuit. This is the better option than filing a new court action for breach of contract. Keep in mind the potential for out-of-control legal expenses, particularly if one side is emotional or irrational, should you proceed to litigation.
Note that your spouse may decide to challenge the validity of the agreement or seek modification of the terms. The standard for either is very high. When the issue is failure to pay support, the party seeking a change to the agreement must show a significant drop or increase in income or a substantial change in circumstances and provide a log showing the efforts, in detail, he or she has made to find similar employment. For modifications related to custody and parenting time, the court will decide based on what is in the best interests of the child.
Again, litigation will increase the time and money needed to resolve the situation. Thus, if possible, it is best to negotiate a settlement and avoid court as what you give up in settlement may be far less than what it would cost you to go to court. To that end, cost is not strictly financial as there are emotional costs to consider as well – particularly if the litigation becomes protracted.
If you are involved in a dispute with your spouse over a prenup, post-nup or separation agreement, skilled legal representation is essential. An experienced family law attorney can help you enforce the terms of the agreement or advise you of your options if you are the one who is not in compliance.
Contact us to help you find the best solution for your marital dispute.
