While most people are familiar with prenuptial agreements, knowledge of the post nuptial agreement is not nearly as common. Yet, post nuptial agreements are becoming increasingly more popular as spouses seek to protect their individual assets, usually acquired following a change in circumstances, in the event of a divorce. Like a prenuptial agreement, the post nuptial agreement is a contract between spouses to protect individual assets as well as other rights.
The primary difference is that the post nuptial agreement is entered into during the marriage whereas a prenuptial agreement is signed before a couple gets married. Typically, post nuptial agreements are used when one of the parties receives a financial windfall, such as inheritance, and wishes to protect that interest in the event of divorce.
Reasons a Couple Might Obtain a Post Nuptial Agreement
- The couple wishes to revise the terms of their existing prenuptial agreement.
- The circumstances of one of the parties has changed significantly. This could be from a new job or promotion, inheritance or the sale of business.
- One of the parties wishes to provide for dependents from a prior relationship
- Their prenuptial agreement did not adequately define their financial relationship or equitable distribution of assets
Requirements For Obtaining a Post Nuptial Agreement
- Both parties must enter into the agreement willingly and without coercion
- The agreement must be in writing
- The post nuptial must be notarized
- The agreement must be fair at the time it is made and when it is enforced. (Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999).
- The agreement must be entered into with full disclosure between the parties
Over the last 10 years, postnups have been gaining in popularity. Family lawyers report a significant increase in requests for post nuptial contracts. These agreements are being requested both by husbands and wives and it is not always an indication of problems within the marriage. Many are simply viewing these contracts as wise financial planning.
Post nuptial agreements tend to be more difficult to enforce in New Jersey than premarital agreements. While family courts tend to assume that a prenup is valid and enforceable, this is not always the case for post nuptial agreements because of a legal fiduciary duty to one another. This spousal fiduciary duty begins when they get married and continues until the divorce is final and marital assets are distributed. The courts wish to be certain that the contract was entered into without any duress, misrepresentation or coercion. New Jersey has one of the highest standards of fairness when it comes to post nuptial agreements.
It is recommended that anyone who is considering a post nuptial agreement speak with an experienced family law attorney.
Considering a Post Nuptial Agreement?
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