Most people are familiar with prenuptial agreements, which are written property contracts drafted by two people prior to getting married. Spouses can, however, enter into contractual agreements, or postnuptial agreements, at any point during the course of the marriage. Similar to prenups, these agreements primarily address property division and financial support in the event of a divorce or a spouse's death. By law, prenuptial and postnuptial agreements cannot address issues pertaining to children, such as custody, visitation and child support. These issues must be negotiated at the time of the divorce, or decided by the court based on the child's best interests.
Now, you may be wondering to yourself, what exactly if the point of a postnuptial agreement? If you were okay marrying someone without a prenup, why bother to put things in writing now? It may even seem offensive to certain people, especially if there are no major issues within the marriage. While a postnup isn't always about greed or a lack of trust, it is true that that they are typically triggered by financial windfalls, such as being promoted at work or receiving a large inheritance. On the one hand, it seems sensible to protect your interests, especially in the case of an inheritance, which was intended solely for you. On the other hand, profits from things like work promotions and business deals are not as clear cut. It your partner contributed in any way to your career or financial success, he or she may feel a sense of entitlement to a certain portion of your new-found wealth. If so, it's unlikely that you will be able to negotiate a postnup; even if you do, it may get thrown out if your spouse can show good cause.
An example of "good cause" would be a case in one spouse was coerced into a postnup with the threat of divorce or abandonment. This is not uncommon in families where one partner earns a low income, or stays home to take care of the kids. In order to circumvent such tactics, New Jersey law requires that a postnup be notarized, with both parties attesting that the agreement is being signed without duress or
coercion. Furthermore, the court reserves the right to throw out any prenup or postnup that is determined to be "unconscionable". This is a tricky legal concept, but it generally means that the terms of an agreement are grossly unfair based on a wide range of reasons, including marital misconduct, hidden assets and lack of legal representation. These are extreme cases, but you should discuss them with your attorney to ensure that you are not committing and legal or ethical violations.
If you and your spouse are contemplating a postnuptial agreement, please speak with the experienced divorce attorneys of Villani & DeLuca, P.C. Our lawyers have the extensive legal knowledge and trial experience needed to advise you on the pros and cons of a postnuptial agreement. Please schedule a free consultation with one of our attorneys.