What is a Post-Nuptial Agreement?

A post-nuptial agreement is a contract that is entered into between married spouses. A post-nup delineates the distribution and ownership of financial assets in the event the parties pursue a divorce. A post-nuptial agreement cannot be used to establish a child custody arrangement should the parents pursue a divorce at a later juncture in time. In many ways, a post-nup mirrors a prenuptial agreement, a contract of a similar nature entered into before a couple enters into marriage.

The standards that must be met in order to create a valid New Jersey post-nuptial contract are generally the same as what is required for a pre-nuptial agreement. In order for a post-nup to be legally valid and binding in New Jersey, the following elements must be satisfied:

• In order for this type of post-matrimonial agreement to be binding, each party must make a comprehensive disclosure of assets and debts. If a spouse is found to have hidden assets or debts in the leadup to drafting and entering into a post-marriage agreement of this type, the post-nup itself is going to be found unenforceable if the party that was “duped” contests the validity of the contract.
• In order for a post-nup to be legally binding, the terms and conditions of the contract must be fair and equitable. There is some indication that New Jersey courts will scrutinize the fair and equitable nature of a post-nuptial agreement more closely than they do a prenup. The reason for this closer scrutiny is that courts have determined that a married couple has some type of fiduciary relationship between them. In other words, a married couple is going to be held to something of a higher standard when it comes to operating in a fair and equitable manner in regard to the other spouse when entering into a contract like one designed to deal with assets if a divorce occurs.
• The validity of a post-nup is contingent upon the spouses entering into the agreement in a free and voluntary manner. A post-nup will be considered unenforceable or not valid if a spouse was forced or coerced to enter into the agreement.
• Finally, a New Jersey post-nup will be deemed enforceable if each party had independent legal representation. In other words, if the attorney for one spouse drafts a post-nup, the other party needs to seek legal advice and counsel regarding the proposed agreement. The other spouse needs to have the contract reviewed by an independent lawyer.
• A post-nup must be in writing. It cannot be memorialized in any other fashion at this juncture in time.
• If property created, a valid New Jersey post-nup is legally enforceable in any other state in the United States. Thus, if one spouse moves, the agreement remains enforceable in either the state in which it was drafted or any state in which a spouse later resides.

There are a couple of more commonplace reasons why a married couple elects to enter into this type of marital asset agreement. First, a couple may have a prenuptial agreement that they desire to update. This can be accomplished via a post-nup. Second, a couple may not have created a prenup prior to marriage but are now at a juncture in their lives and relationship that they believe entering into a marital asset agreement of this nature meets their best interests.

A post-nup must be drafted in precise accordance with New Jersey law. As has been discussed, there are specific standards that must be met in order for this type of marital asset agreement to be valid and enforceable. For this reason, it is incumbent upon a couple intent on entering into a post-nup agreement to seek experienced legal counsel.

As has been discussed a moment ago, the process of drafting and entering into a post-nup necessitates the involvement of two attorneys, one representing each spouse. An attorney drafts the agreement. A second lawyer reviews the contract on behalf of the other spouse. One attorney cannot represent both spouses in a matter involving the drafting and signing of a post-nup because it legally would be a conflict of interest.