Postnuptial Basics

Prenuptial agreements are well known and most people have heard of them, especially in terms of celebrities or the ultra-wealthy. Less well known is an equally useful, if somewhat complicated, document called a post nuptial agreement. As is suggested by the name, post nuptial agreements are entered into by spouses after they have already gotten married.

A postnuptial agreement has many things in common with a prenuptial agreement. Both typically address issues about property distribution or spousal support. It is not permitted in either document to make decisions regarding child custody or visitation, as child issues are always to be decided based on a child's best interest.

In order to be valid and enforceable, a post nuptial agreement must be in writing, signed by both parties, and notarized. Moreover, there must be fair and honest disclosure by both parties about their assets, or a voluntary waiver of such disclosures in writing. Failure to adhere to any one of these requirements will very likely result in a trial court finding that the agreement is not enforceable. As with prenuptial agreements, the party seeking to set aside a postnuptial agreement has the burden of proving that the agreement is unenforceable.

Postnuptial agreements can be useful in the event of the parties divorcing because it can speed up the divorce process. If all or most of the issues have already been determined by a postnuptial agreement, there will not be much if anything for a trial court to decide, making the proceeding much quicker.

The seminal case on post nuptial agreements in New Jersey is Pacelli v Pacelli. In that case, a divorcing couple had a post nuptial agreement that the husband sought to enforce. The wife wanted the agreement set aside, stating that the husband coerced her into signing the agreement. The appellate court ultimately agreed with the wife. The problem was not that the agreement was signed in contemplation of the parties’ imminent divorce. The problem was that the husband had told the wife if she didn't sign, he would divorce her. In an effort to save the marriage, the wife signed the agreement. The court agreed that this was coercive and set aside the agreement.

We have extensive experience in helping our clients with postnuptial agreements. Call us today at (732) 529-6937 for an appointment. We can talk about your marriage and whether a post-nuptial agreement is right for you.

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