An Overview of Post-nuptial Agreements

Prenuptial agreements between Hollywood’s rich and famous often makes the headlines, but it has a less glamorous cousin, the post-nuptial agreement. And average Americans are increasingly turning to this post-wedding paperwork to salvage shaky marriages. A post-nuptial agreement is a contract between spouses. It is similar to a prenuptial agreement except it is signed during the marriage. A post-nuptial agreement is entered into in contemplation of an ongoing and viable marriage. As with prenuptial agreements, one or both of the parties usually is seeking to protect assets or income in the event of divorce or death.A married couple may seek to enter into a post-nuptial agreement after a significant financial change or a period of marital conflict. The most common scenario when a post-nuptial agreement can be used is when one spouse receives an inheritance. If the married couple wants to purchase a bigger and better home with the money received by the inheritance, then a post-nuptial agreement can be used to safeguard the financial interests of the spouse who received the inheritance. The law regarding the validity and enforcement of post-nuptial agreements is not well developed in New Jersey. This is an emerging area of the law. Post-nuptial agreements are enforceable. However, they are viewed with a “grain of salt” by the New Jersey judiciary.

The legal standard for the enforcement of post-nuptial agreements is similar to the one used for the enforcement of prenuptial agreements. There are two basic rules that should be followed to safeguard your agreement: full and fair disclosure and separate and independent legal counsel for both spouses. Moreover, the overwhelming theme of the case law regarding post-nuptial agreements is that they are only enforceable if they are fair and reasonable.

The major difference between a prenuptial agreement and a post-nuptial agreement is the time period when the agreement was reached. A prenuptial agreement is entered into before the marriage, and a post-nuptial agreement is entered into after the marriage. Moreover, the family courts usually assume that a prenuptial agreement is valid. Whereas, the family courts often view a post-nuptial agreement with a great deal suspicion. The primary difference between the two types of agreements is the context of spouses bargaining position before the agreement is reached. Before the marriage, the spouses are entering into an agreement much like two business persons entering into a contract. After the marriage, the spouses are now in a fiduciary relationship with each other. Therefore, any written agreements that are made between the spouses are viewed with a great deal of skepticism. In many cases, a wife is under a tremendous amount of pressure by her husband to sign a post-nuptial agreement.

Certainly, a post-nuptial agreement is better than having no agreement at all. However, many clients are under the misconception that they are as “covered” with a post-nuptial agreement as with a prenuptial agreement. The harsh reality is that the family courts tend to assume that a prenuptial agreement is always valid. However, most family courts have the opposite disposition when they review a post-nuptial agreement. Most judges initially assume that a post-nuptial agreement is not legally valid. A post-nuptial agreement is hard to enforce simply because once married, a couple has a fiduciary duty to care for one another in all ways.

As with prenuptial agreements, post-nuptial agreements are made for a wide variety of reasons. Post-nuptial agreements cover many issues such as the ownership of the family home, the equitable distribution of stocks and bonds, the waiver of pension rights, the waiver of inheritance rights, and the waiver of the right to elect against each others will.

A married couple might obtain post-nuptial agreement for several reasons:

  1. They didn’t define their financial relationship in a prenuptial agreement.
  2. They want to change the terms of their prenuptial agreement.
  3. One party’s financial circumstances have changed, perhaps through inheritance, promotion, stock options or sale of a business.
  4. Financial insecurity is now undermining the marriage.
  5. They want to provide for children from a prior marriage.
  6. They want to specify the equitable distribution of their assets rather than leave it up to the court.

POST-NUPTIAL AGREEMENTS

All of the post-nuptial agreement forms listed in the menu below are offered free, as a courtesy service to other New Jersey lawyers and to all pro se litigants. Attorney Theodore Sliwinski, Esq. is committed to providing Quality Legal Services at Affordable Rates to the public. His mantra has always been “Getting Divorced Doesn’t Have to be Expensive.” Moreover, he can also prepare your prenuptial agreement for an affordable fee.

These sample post-nuptial agreements are intended for use by New Jersey lawyers or by pro se litigants. Please don’t hesitate to call Mr. Sliwinski, Esq. if you have any questions about using these sample agreements. He will be pleased to assist you. Remember, negotiating and preparing a post-nuptial agreement is a difficult and emotional process. Don’t go at it alone!

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