Family Matters

Postnuptial Agreement – Is it right for you and your spouse?

A postnuptial agreement can provide similar benefits to a prenuptial agreement. When possible, we always recommend couples enter into a premarital agreement before the wedding rather than waiting to enter into a postnuptial or mid-marriage agreement. However, often married couples enter into postnuptial agreements when they are looking to supersede their prior prenuptial agreement.

In other situations, postnuptial agreements can provide a framework for spouses looking to:

1. Address and resolve financial issues that are putting a strain on the marriage;
2. Address a major change in one spouse’s finances such as a significant salary increase, receipt of a large inheritance, or realization of an investment;
3. Protect assets during a period of separation and/or while working to repair a marriage; or
4. Protect business interests that developed after the marriage.

However, New Jersey Courts often view postnuptial agreements with heightened scrutiny in comparison to premarital agreements. This is because when you are entering into a premarital agreement, either party is free to walk away from the relationship before the wedding. However, with a postnuptial agreement, you and your spouse already have a fiduciary duty to the other and the Courts are particularly concerned about fairness and whether a spouse may have felt coerced to enter into the postnuptial agreement to preserve his/her marriage and family.

It is important that you and your spouse meet the following criteria when entering into a postnuptial agreement:

1. Both spouses fully and accurately disclose their assets and incomes;
2. Both spouses have attorneys. If one spouse is adamant about not having representation, he/she must freely, knowingly, and voluntarily waive his/her right to counsel in writing;
3. Both spouses consider the agreement fair and equitable;
4. Both spouses enter into the agreement freely and voluntarily without force or coercion;
5. Both spouses have ample time to consider and review the agreement.

Please reach out to a family law attorney if you are interested in preparing a postnuptial agreement to ensure the agreement is properly drafted.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.