While many spouses will pursue a premarital agreement, one other course of action is the enactment of a postnuptial agreement. Postnuptial agreements typically specify the same types of items seen in a premarital agreement, but a postnuptial agreement is entered into after marriage. On top of this, while a premarital agreement has a somewhat precautionary mindset to mitigate a divorce, a postnuptial agreement is often used by spouses who have encountered marital difficulty but are seeking to work things out. The postnuptial agreement can help provide better structure. Many times spouses that encounter difficulties will enter into a postnuptial agreement just to prevent a lengthy and exhausting divorce process, should their marriage fail.
Postnuptial Agreements In New Jersey
Postnuptial agreements are meant to cover the same aspects of the marriage that a prenuptial agreement would normally cover. These include:
- Separate versus marital property
- Property division
- The establishment of any trust or will
- Benefactors of any life insurance policy
- Specific issues and obligations pertaining to the spouses
- How the agreement is to be fulfilled
Although postnuptial agreements are meant to cover a wide variety of issues that can arise in a divorce, they will hold no bearing on custody and child support proceedings. Both of these matters are decided separately, and will not have any place in a postnuptial agreement.
Postnuptial agreements may even be entered into if the spouses have already signed a premarital agreement. The subsequent postnuptial agreement will supersede the prior prenuptial agreement, although the initial prenuptial agreement may serve as building blocks for the new postnuptial agreement.
Validity Of Postnuptial Agreements
Postnuptial agreements are entered into after marriage, however, New Jersey has certain prerequisites that must be met for one of these agreements to be considered valid. These include:
- Both spouses must fully disclose their assets
- Both spouses must be entering the agreement of their own accord
- Both parties must have legal counsel
While a postnuptial agreement may be drawn up and signed, if a couple decides to divorce, one of the spouses may challenge the agreement. Agreements can be challenged on the grounds that the prerequisites for the agreement have not been fulfilled, or that the agreement made was somehow unconscionable to one of the parties. If the postnuptial agreement is unfair, or if it favors one spouse heavily over another, it may be challenged in court. While either spouse can challenge the agreement in court, the challenger must use evidence and argument to prove their case.
If you or a loved one is involved in matters of Family Law, contact attorney Joseph D. Lento today.