Post-Nuptial Agreements Protect Financial Interests In Divorce

With divorces in New Jersey on the rise, people should educate themselves on the ways in which they can protect their past, present, and future assets and financial interests and the execution of a postnuptial agreement may help to protect these interests in the event that a married couple should choose to divorce. Postnuptial agreements function very much like prenuptial agreements except for the fact that these agreements are executed during the pendency of the marriage as opposed to before the marriage has taken place. Postnuptial agreements are generally utilized in situations where the married parities did not draft a prenuptial agreement prior to their marriage and although the couple may intend to stay married, they want to be protected if their relationship were to dissolve at some point. Parties typically find it much easier to establish resolutions to marital issues before the dissolution of the relationship and therefore postnuptial agreements can offer both protection but also peace of mind for married couples who want to try to avoid protracted and expensive legal battles if they choose to divorce. Couples find that postnuptial agreements apply to many marital situations. For instance, drafting such an agreement may function to modify an existing prenuptial agreements in the event of changed martial circumstances. Also, if the parties discover, only after being married, that they have very different perspectives on financial management a postnuptial agreement anticipate the division of assets or establish a procedure for doing so in the event of a divorce. The case of Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999) established the standards for postnuptial agreements. According to the Pacelli decision, court will exercise a very high level of scrutiny when determining the enforceability of a postnuptial agreement to make sure that neither party was coerced into entering the agreement by the other party. This means, that it is very important that those considering entering into a postnuptial agreement should seriously think about consulting with an experienced attorney before doing so. A postnuptial agreement will be enforceable if both parties offer their full financial disclosure during the process, both are represented by separate attorneys, there is no evidence of duress of coercion, and that the terms of the agreement are fair and equitable (both when the agreement was executed and when it is being performed). If you are interested in learning more about postnuptial agreements or if you are prepared to draft and execute such an agreement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about postnuptial agreements, divorce, prenuptial agreements, equitable distribution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Prenuptial Agreement Reform in New Jersey

There have been recent reforms to the laws governing prenuptial agreements in New Jersey. The purpose of a prenuptial agreement is to legally memorialize the parties' intentions and rights regarding all or certain aspects of the marriage or civil union before either takes place in an attempt to avoid litigation should the marriage or civil union dissolve. In most states throughout this country, prenuptial agreements are strictly enforced provided that procedural and disclosure requirements are followed. In New Jersey, courts will neglect to enforce prenuptial agreements if the aforementioned procedural safeguards are not followed, just like in most other states. However, New Jersey courts provide parties with an additional means to avoid the enforcement of such agreements. The courts will not enforce prenuptial agreements that are considered to be unconscionable, both when the agreements are initially executed and also at the time that the parties want them to be enforced - typically at the time of a divorce or dissolution. The affect that this has on the validity of a "prenup" can be profound. The language in the law that allows for a party to avoid the enforcement of the terms of an agreement due to unconscionability essentially provides a party with an avenue to allow the terms of the agreement to be litigated in the courts, which is contrary to the entire purpose of the prenuptial agreement. If a party desires to prevent the enforcement of the terms of the agreement at the time of dissolution, he or she only has to claim that the agreement is or was unconscionable and the court may delay the enforcement of the agreement until the disputed terms are litigated. As of June 27, 2013, the New Jersey Legislature amended R.S.37:2-38, the law that governs prenuptial agreements, to remove the language that provides parties with the ability to claim unconscionability at the time of enforcement. Therefore, as long as the agreement was not unconscionable at the time of its execution, parties were provided with full disclosure of information, and all other procedural safeguards were followed at the time of execution - the courts should strictly enforce the agreement upon dissolution. Ultimately, the removal of this language in the law functions to strengthen the enforceability of pre-marital and pre-civil union agreements. This amendment will govern all prenuptial agreements executed on or after the effective date of the amendment. If you are entering into a second marriage and want to protect your children, you have a high net worth, are seeking to protect a business interest or have any other reason to protect your assets when entering into a marriage it is critical that you consult an attorney experienced in prenuptial agreements. For more information regarding pre-nups, alimony, palimony, child support, equitable distribution or other family law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.