Reconciliation Agreements

A reconciliation agreement is a type of post-nuptial or mid-marriage agreement, meaning it is an agreement entered into by two people who are married to each other. A reconciliation agreement is entered into by a couple as an attempt to resume the marriage after a significant conflict between the spouses, often an affair. The reconciliation agreement typically provides that the non-cheating spouse be given a financial commitment in exchange continuing the marriage with the spouse who had the affair.

The court in Nicholson v. Nicholson, a 1985 New Jersey case on reconciliation agreements stated, “Courts tend to favor reconciliation agreements as furthering the State's interest in preserving the marriage and will enforce them so long as they are fair and equitable.” In New Jersey, a reconciliation agreement may be enforced if it is fair and equitable. The agreement must be fair at both the time it was entered into and also at the time that it was to be enforced.

The Nicholson court described several criteria for judges to consider when determining whether to enforce a reconciliation agreement. They are guidelines that should also be considered when drafting a reconciliation agreement.

• Before a reconciliation agreement will be enforced, the court must determine that the promise to resume marital relations was made when the marital rift was substantial.

The marital issues sought to be resolved by the reconciliation agreement must be significant. The court in Nicholson found that two instances of extra marital affairs satisfied this factor.

• The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged.

The key to enforcement of these agreements is fairness.

• The terms of the agreement must have been conscionable when the agreement was made.

Unconscionable agreements are those that are one-sided or unjust. The court here is again ensuring fairness.

• The party seeking enforcement must have acted in good faith.

Good faith means that the parties are acting honestly and fairly when entering into the agreement.

• Changed circumstances must not have rendered literal enforcement inequitable.

As time passes from when the agreement was entered into to the time one party seeks to enforce it, the financial situation of the parties cannot have changed so significantly that the enforcement of the agreement has been rendered unfair.

It is clear from the Nicholson court’s opinion that to enforce a reconciliation agreement, such an agreement must be fair and equitable. Further, it is important that each party disclose all the relevant factors for such an agreement when entering into it. This means that the each of the parties must understand the issues that affect the agreement. For example, if one spouse knows that he or she is about to receive a significant sum of money, the other spouse must be told about that before entering into the agreement. Additionally, each spouse should be represented by independent counsel, which allows each party to understand the agreement as it applies to them.

If you or your spouse is considering a reconciliation agreement, please call the Law Offices of Peter Van Aulen at 201-845-7400 for a consultation.

Nicholson v. Nicholson , 199 NJ Super. 525 (App. Div. 1985)