Whether it's your first, second or subsequent marriage, the realization that it's not working is always devastating.  If you've been divorced already, you know that it's an emotional and financial roller coaster from start to finish.  Even those who've never been divorced have heard enough horror stories from friends and relatives to know that divorce shouldn't be wished on your worst enemy.  That's why most unhappy couples try to stick it out, or work on ways to better their marriage through counseling.  While counseling is highly recommended, spouses may want to consider legal remedies to assure each other that neither will be left out in the cold should divorce be the inevitable conclusion.

We know it sounds contradictory:  Why prepare for divorce if you're trying to work on the marriage? Well, first and foremost, much of the worry concerning divorce is about money.  In fact, most of the arguments in a marriage are about money, even if it's indirectly tied into other grievances.  That's why finances, next to custody, is the biggest worry for couples who don't have a prenuptial agreement.  A possible solution is the post-nuptial or mid-marriage agreement.  This agreement works the same as a prenuptial agreement, except you have the benefit of listing and dividing assets you've acquired throughout the marriage.  You can even negotiate alimony payments – a top priority for the dependent spouse. 

Some people argue that such negotiations only add fuel to the fire.  On the other hand, if your marriage is already in a bad place, tip toeing around hot button issues is unlikely to help.  It's also a matter of how you introduce the idea of a post-nuptial agreement.  For instance, “Let's get things down on paper in case you try to run off with everything” would not be a good introduction.  Introducing it at a therapy session may help, since a therapist could help your spouse understand that this is not a personal attack.  It can actually be a way to talk through some of the issues – at least financial issues – in your marriage, and work out a system that ensures protection for both of you, regardless of what happens.  If anything, it's a way to show that you care about them living a good quality of life even without you.  It also spares them the agony of having to do this during the divorce, when emotions are heightened and fragile.

Whether a post-nuptial agreement is in your best interest depends on personal factors within your marriage.  For example, volatile marriages involving situations like prolonged domestic violence cannot be “negotiated” on any level.  However, it's worth bringing up the discussion with an experienced divorce attorney, who can advise you on your own specific situation.  We advise you do this before speaking with your spouse, so that you are aware of all the possible legal and personal ramifications.  For more information on post-nuptial agreements in NJ, please speak with the attorneys of Villani & DeLuca, P.C.