Many couples enter into post-nuptial agreements in order to help settle future disputes about how marital assets will be distributed in the event the couple ever files for a divorce. These “postnup” agreements are very similar to prenuptial agreements that are recognized by statute in New Jersey. In the event of a divorce, both a postnup and a prenup can help make the entire divorce go more smoothly, reducing the stress and expense of what can be an extremely stressful (and expensive) legal process. One thing that both postnups and prenups are not allowed to regulate, however, is child custody issues. New Jersey law specifically prohibits child custody matters from being included in postnup and prenup agreements.
That said, a fair and equitable postnup agreement can make it easier for divorcing couples to come to an agreement on child custody issues and for the court that is making the ultimate decision on child custody arrangements to approve custody arrangements agreed to by the couple. If you have questions about creating or enforcing a postnup agreement or how a postnup can influence a court's child custody decisions, contact the Lento Law Firm's Family Law Team for help. We can be reached at 888.535.3686 or by using our contact form to schedule a confidential consultation with one of our experienced attorneys.
What Is a Post-Nuptial Agreement?
A post-nuptial agreement is an agreement between spouses made after the couple is married that addresses how their property will be divided in the event the couple divorces. Couples enter into “postnups” for many reasons. Sometimes it's because one spouse anticipates that they will be receiving a “windfall” – a large amount of assets from an inheritance or from the sale of a company in which the spouse has an ownership interest, for example. Both parties may agree to allocate the value of that windfall in a certain way that both believe is fair, with the postnup reflecting that agreement. In some cases, the postnup may only relate to how that “windfall” amount is to be distributed between them.
In other cases, the couple has experienced marital difficulties. They are both concerned about the future of the marriage and while hoping for the best, they agree that it's in their best interests to avoid an expensive and bitter battle over who gets what in the event they ever do divorce. The postnup, in that case, may cover all of the assets held by both parties, detailing how the assets are to be divided between them in the event of a divorce.
While postnups do not cover child custody issues, they do address other matters that a judge will take into account when making a child custody ruling. Because the focus of child custody rulings in New Jersey is on what is in the best interests of the child or children, a postnup that makes it clear that each spouse will be properly provided for in the event of a divorce will help resolve those kinds of issues when it comes time for a judge to approve a custody agreement or issue a custody order in connection with a divorce.
What is a Pre-Nuptial Agreement in New Jersey?
As opposed to a postnup, which is an agreement signed after the parties are married, prenups are agreed to and signed before the marriage happens.
Prenups are regulated by New Jersey statute. The law specifically states that a “premarital or pre-civil union agreement” is one “between prospective spouses or partners in a civil union” that is “made in contemplation of marriage or a civil union” and that is “effective upon marriage” or upon the civil union. They must be in writing and, by law, may cover the following topics:
- The party's rights and obligations “in any property of either or both of them whenever and wherever acquired or located”
- The right to engage in a number of different types of transactions in connection with property
- How property will be disposed of in the event of a divorce or in the event of the death of one of the parties
- Changes to or elimination of spousal support obligations
- The terms of a will or trust that will reflect the prenup's terms
- How the proceeds of a life insurance policy death benefit will be distributed
A prenup is not allowed to “adversely affect” the right of a spouse to receive child support. And prenups cannot make custody determinations.
Is There a Postnup Statute in New Jersey?
While there is no postnup statute in New Jersey, the state's prenup statute does allow a prenup to be “amended or revoked” after the couple is married, provided it's done by way of a written agreement. In this way, a prenup agreement can effectively be converted into a postnup agreement.
Despite the lack of a postnup statute, New Jersey does allow postnup agreements provided they meet certain standards. Courts will examine the terms and circumstances of postnups very closely before enforcing them.
Courts understand that postnup situations are typically different in a number of ways from prenup situations. As one court noted, “the dynamics and pressures involved in a mid-marriage context are qualitatively different” than those involved in a prenup situation.
Postnup agreements are similar to what were once called “reconciliation agreements” – agreements that were made by spouses as part of the couple reconciling after a break between them that threatened the stability of the marriage. Because the desire of one party to reconcile is often greater than the desire of the other party to do so, these kinds of situations often allow one party to “use the threat of dissolution ‘to bargain themselves into positions of advantage.'” As a result, postnup agreements “must be closely scrutinized and carefully evaluated” for fairness.
And even though one of the key concerns of most couples facing the possibility that their marriage will dissolve is the welfare of their children, postnup agreements, like prenup agreements, may not address child custody issues. Again, those issues are decided by the judge in child custody proceedings with a view as to what is in the best interests of the child or children – not the divorcing parents. But just as prenup agreements can resolve asset and spousal support issues that can have an effect on a court's child custody decisions, so too can a postnup agreement set the stage for a fair resolution of child custody questions.
What Types of Issues Do Postnup Agreements Cover?
A postnup can be a very effective tool to help spouses decide how their assets are to be allocated in the event of a divorce. That assumes, of course, that the postnup has been fairly negotiated between the two spouses, with full disclosure of each spouse's assets and liabilities, and that one spouse isn't pressured into agreeing to questionable or unfair terms by the fear of the other spouse filing for divorce if the postnup isn't signed.
One important thing to keep in mind when negotiating a postnup agreement is that the parties need to be transparent when it comes to disclosing all of their assets as well as their liabilities (such as debts) to the other spouse. This is not just a general issue of fairness; spouses have what is called a “fiduciary duty” to each other while they are married. This is a legal obligation that requires each spouse to first and foremost act in the best interests of the other. That needs to happen even before one spouse acts in their own best interests or competes with the other spouse.
With that as background, postnup agreements can address all of the same types of issues that prenup agreements are able to under New Jersey law. This means a postnup can cover how assets owned by one or both spouses are to be divided between them in the event of a divorce. It can also address the extent to which one spouse will receive spousal support from the other and for how long. And it can also cover what happens in the event one spouse dies; whether and to what extent the other spouse will receive death benefits from life insurance or will inherit from the deceased spouse's estate.
What Do New Jersey Courts Consider When Making Child Custody Decisions?
New Jersey law is clear: “in any action concerning children,” including custody decisions, “the best interests of the child shall be the primary consideration.” New Jersey also favors allowing children to have “frequent and continuing contact with both parents” after the parents have separated or are divorced. Courts are required to consider that both parents have equal rights when they make custody decisions; in other words, judges are not supposed to favor giving primary or sole custody of a child to, for example, the mother simply because she is the child's mother.
That said, judges have the flexibility, depending on the situation, to award joint physical custody to both parents, with arrangements for the child or children to live “either solely with one parent or alternatively with each parent in accordance with the needs of the parents” and the child or children. In fact, New Jersey generally favors awarding joint custody when possible.
A judge can also award joint legal custody to both parents, where legal custody relates to who makes “major decisions regarding the child's health, education, and general welfare.” If joint legal custody is awarded, the court's custody agreement will typically provide a way for the parents to consult and agree on legal custody decisions.
Judges can also be aware of sole custody – physical or legal – to one parent under appropriate circumstances. This can happen, for example, where one parent has been convicted of a sex offense that disqualifies them from having custody of their child or children or where the parent is in jail and thus unable to take any custody.
New Jersey law provides a list of the factors that judges are to take into account when awarding custody. These include:
- The ability of the parents to “agree, communicate and cooperate” on issues relating to the child or children
- How willing each parent is to accept custody
- Whether either parent has a history of being unwilling to accept custody
- How the child or children interact with each parent and with any siblings
- Any history of domestic violence in the home
- The safety of children and either parent from abuse by the other parent
- For children of an appropriate age, what their preferences are for custody
- The specific or special needs of the child or children
- How stable the home environment is in each household
- The “quality and continuity of the child's education”
- How fit each spouse is to be a parent
- How close the divorcing couple's homes are or will be to each other
- How much time each parent has spent with the child or children before and after the parent's separation, and the quality of that time
- What the employment responsibilities of each parent involve
- The age or ages of the child or children, and how many children there are
While many of these factors are ones that focus on the type of relationship that the parents have with the child or children, other factors are ones that can be taken into account when negotiating a postnup agreement.
For example, if the postnup is structured in a way to make it easier for both spouses to be able to afford to live in the same area, that factor may contribute to the judge awarding joint physical custody as opposed to sole custody to one parent and only limited visitation rights to the other. Having the parents living far apart could contribute to the judge deciding that it is in the best interests of the child or children to spend the entire school year with one parent and only limited amounts of time when school isn't in session with the other parent. Similarly, if the postnup is able to provide a degree of financial security for both parents that enables them to make job choices that will leave them time to care for their children, that is another factor that may support joint versus sole physical custody.
Can a Postnup Address Future Custody Arrangements?
In a word, no. Child custody decisions are kept separate from the financial aspects of divorce proceedings in New Jersey. Both postnup and prenup agreements may not address child custody issues. This all goes back to the primary consideration that judges will have when issuing a child custody order: what is in the best interests of the child or children? And that decision is ultimately left to the judge in a child custody case, not the parents.
That said, there are definitely indirect benefits when it comes to child custody issues that can flow from the parents having a postnup that covers many, if not all, of the financial issues that would normally have to be decided in a divorce proceeding. Having agreed in advance on the financial aspects of the divorce, parents may be more inclined to agree on custody terms as well.
That's an important benefit to having a postnup in place. Knowing that the financial issues have been effectively resolved by the postnup, divorcing parents can focus their energies on arriving at a custody agreement that works for both of them and for the children. They'll then present their proposed custody agreement – also called a “parenting plan” – to the court for the judge to review. When both parents work with experienced family law attorneys, the lawyers will help make sure that the parenting plan has a very good chance of being approved by the judge. That said, judges typically won't “rubber stamp” parenting plans but will review them using the best interests of the child standard. If a plan appears to favor the parents' own interests ahead of the interests of the child or children, it may be rejected.
Another thing a postnup can indirectly help prevent is a custody dispute that goes to mediation, which is often ordered when parents are unable to agree on a parenting plan. A more drastic step is when the judge orders a custody evaluation, which is when a mental health professional appointed by the court interviews the family and recommends a custody arrangement, which, in many cases, will be the one ordered by the court. Again, while the postnup won't directly address the terms of the parenting plan, having agreed on many aspects of how the divorce will proceed, parents are naturally going to be more inclined to agree on custody terms to propose to the court.
Do I Need a Postnup Agreement if I Believe My Spouse and I May Divorce?
Whether or not a postnup agreement makes sense in your situation – whether or not you believe divorce is a possibility in your marriage – is something that depends on your particular situation. That's where the Lento Law Firm's Family Law Team can help. In many cases, a postnup can help settle financial issues that might be causing problems in your relationship. Of course, in other cases, raising the possibility of a postnup may also cause some problems.
When it comes to custody, however, the postnup can only have an indirect effect. As explained above, child custody issues are resolved by the court under a very different standard than issues relating to the division of marital assets and spousal support. But as we have pointed out, when two parents have gone through the exercise of coming to an agreement on the terms of their postnup, the odds are stronger that they'll be able to agree on custody terms that will be in the best interests of their child or children.
The Lento Law Firm Can Help You With Postnup and Custody Issues
The Lento Law Firm's Family Law Team is made up of attorneys who have years of experience helping clients with their divorce and child custody proceedings all across New Jersey. We understand the complicated laws and procedures that apply when it comes to child custody and divorce proceedings. Just as importantly, we also understand the emotional toll that divorce can have on an entire family.
When a divorce is inevitable, we will work with you from day one to assess your situation, make sure your rights are protected throughout and secure for you the benefits that the law entitles you to receive. We'll guide you through what judges look for in a custody agreement and will work diligently to negotiate a parenting plan that is acceptable to both parties and that the judge will approve.
Where you come to use for a prenup or a postnup, we'll make sure that the agreement is one that will meet the standards that New Jersey has in place for these types of agreements. Wherever possible, we will work with you to explain how the prenup or postnup will affect what you receive in the event of a divorce and how that is different from what you would receive if you did not sign the agreement. We'll also help you keep in mind ways that the terms of the agreement could have an indirect effect on a future child custody order.
When you're fighting for custody of your child or children, the Lento Law Firm's Family Law Team is here to help as well. Our experienced attorneys have a deep understanding of how judges in New Jersey apply their mandate to make custody decisions based on what's in the best interests of your child or children. We will use that knowledge and our experience representing clients all over the state who find themselves embroiled in custody disputes to fight for your rights and for a custody solution that protects your children and, of course, is in their best interests.
Call the Lento Law Firm's Family Law Team today at 888.535.3686 or use our contact form to schedule a confidential consultation to learn more about how we can help you with your prenup, postnup, divorce, or child custody case. We are here to fight for you and your children – let us tell you how.
