When you first got married, you may not have considered a pre-nuptial agreement. Perhaps you and your spouse did not own many assets or were just starting out in your careers. A pre-nuptial agreement might not have seemed necessary.
However, many married New Jersey couples accumulate assets and debts throughout the course of a marriage. This could lead you to worry about what would happen to your financial security if you divorced.
What is a post-nuptial agreement and why would I need one?
A post-nuptial agreement could be the solution. A post-nuptial agreement is generally the same as a pre-nuptial agreement, except it is designed for couples who are already married.
There are many benefits to a post-nuptial agreement. It can help you plan how assets and debts will be divided if you separate or divorce. You can specify which property is marital property and which property, such as inheritances or gifts, remains separate property.
In addition to property division, a post-nuptial agreement can also include alimony terms, although it cannot include child custody or support.
If you or your spouse have children from another marriage or relationship, a post-nuptial agreement can help you preserve assets you want to go to the children.
Requirements for a post-nuptial agreement
There are several legal requirements that must be met for a post-nuptial agreement to be valid. Both spouses must fully disclose all assets, debts and other relevant financial information.
Neither spouse should be forced or coerced into signing the agreement. A post-nuptial agreement is meant to be a voluntary agreement between spouses who both sign the agreement of their own free will.
Both spouses should have enough time to review and consider the terms of a post-nuptial agreement. Ideally, the agreement should be reviewed by an attorney. Evidence that one spouse signed the agreement shortly after it was drafted and was not given the chance to review it with legal counsel could be seen as coercion.
As with a pre-nuptial agreement, just because you and your spouse agree on the terms does not necessarily mean the agreement will automatically be enforced by a court. A court will review the terms of a post-nuptial agreement during a divorce and determine if they are fair to both spouses.
Reasons a post-nuptial agreement could be declared invalid
If a court concludes that the terms unfairly favor one spouse over another, the post-nuptial agreement could be declared void, with the divorce then proceeding according to New Jersey’s equitable distribution laws.
Likewise, a court can void a post-nuptial agreement if it discovers one spouse has lied about their financial information or hidden assets. This is why it is important to always be honest when disclosing your financial information for a post-nuptial agreement.
A court may not always decide to strike an entire post-nuptial agreement. If a court concludes some terms are fair while others are not, only the portions deemed unfair could be stricken.
A post-nuptial agreement is still an option if you have a pre-nuptial agreement. Your financial situation may have changed and the terms of your pre-nuptial agreement might be outdated. You may choose to use a post-nuptial agreement to update or revise your original pre-nuptial agreement.