Postnuptial Agreements in New Jersey | What to Know

Key Takeaways

A postnuptial agreement is signed by a couple who are already married to address how assets and support are handled in a divorce.
Unlike a prenup, it is not governed by New Jersey’s premarital agreement statute, but by case law.
Under Pacelli v. Pacelli, postnups face heightened scrutiny and must be fair and just both when signed and when enforced.
They carry no presumption of enforceability, so courts review them closely for fairness and pressure.

A postnuptial agreement is a document established after a couple is already married and outlines how property and support will be handled in the event of a divorce. While these are similar to prenuptial agreements, they are not covered by New Jersey’s premarital agreement statute. Instead, these documents are governed by case law, like Pacelli v. Pacelli, which requires that postnuptial agreements are subject to heightened scrutiny and must be fair both at the time of signing and when executed. If you did not create a prenuptial agreement before your marriage, and you later change your mind, you may be wondering what options you have. Luckily, you can create a postnuptial agreement. Read on to learn more about postnuptial agreements in New Jersey.

What is a Postnuptial Agreement?

A postnuptial agreement is created during the marriage rather than before it, and declares how a couple’s assets will be divided in the event of separation, divorce, or death.

It is a common misconception that a postnuptial agreement is legally identical to a prenuptial agreement. However, prenuptial agreements are governed in accordance with New Jersey’s Uniform Premarital and Pre-Civil Union Agreement Act, which does not extend to postnuptial agreements. Instead, postnups are governed in accordance with case law and court decisions, which hold these agreements to a stricter standard.

Many people avoid creating prenuptial and postnuptial agreements because they can be uncomfortable to discuss, but they can be extremely beneficial to both parties.

Should I Create a Postnuptial Agreement?

You may want to consider creating a postnuptial agreement under the following circumstances:

The couple did not define their financial relationship in a prenuptial agreement and now wish to do so.
One spouse’s financial situation has experienced significant changes. This may happen if they receive a large inheritance, a job promotion, or acquire stocks or investment options.
The marriage’s stability is affected by financial insecurity.
Both spouses want to avoid the uncertainty that comes with not having a plan in place in the event of a separation.
One or both spouses want to secure financial support for children from a previous marriage.

Is My Postnuptial Agreement Valid?

It is important to know that there are certain guidelines that must be followed when creating a postnuptial agreement. This ensures that it is a valid, legal document. In the event that the agreement is made unlawfully, it can be deemed invalid and not be able to be used in court. There are five main qualifications for a postnuptial agreement in New Jersey:

The terms must be fair and reasonable to both spouses
Both spouses must have time to reach an informed decision about whether or not they want to sign the agreement
A spouse cannot be manipulated, coerced, tricked, or pressured into signing the document
Each spouse must retain separate legal counsel or waive their right to counsel in writing
The financial status of each spouse and their assets must be accurately and fully disclosed before the signing

The Heightened Standard From Pacelli v. Pacelli

It’s important to understand that meeting the aforementioned qualifications is not always enough. In Pacelli v. Pacelli, a New Jersey appeals court refused to enforce a mid-marriage agreement despite the involvement of experienced attorneys. Two principles from that decision make postnups harder to enforce than prenups:

Fair and just at two points in time: The postnuptial agreement must be fair and just at the time it is signed and at the time of the divorce, carrying no presumption of enforceability. Prenuptial agreements are typically only judged as of the date it’s signed, and are presumed valid.
Pressure of an intact marriage: Because a spouse may sign the agreement while trying to preserve their marriage or family, the courts often examine these agreements closely to ensure that the signing was not the product of pressure or circumstances that would have otherwise changed considerably.

Contact our firm to create a prenuptial or postnuptial agreement. Our experienced attorneys are here to walk you through the process each step of the way.