Prenuptial agreements, sometimes referred to as prenups, have risen in popularity over the past couple of decades. They are agreements signed prior to a marriage that specify who gets what if and when the marriage should end. If you did not have a prenup agreement when you got married, you still have options. Some married couples are now using postnuptial agreements to help dictate what will happen should their marriage end. If you want to learn more about drafting a legally binding postnup agreement, contact an experienced New Jersey divorce attorney.
What is a Post Nuptial Agreement?
Nearly identical to a prenup, a postnuptial agreement is a written contract executed between two married spouses to lay out what will occur to the couples’ assets if they decide to divorce. Common reasons for a married couple to seek such an agreement are:
- A significant financial change in the marriage
- A period of marital conflict
- One spouse receives an inheritance
- To change the terms of their prenuptial agreement
- Providing for children from a previous marriage
Enforcing a Postnup Agreement
Postnuptial agreements, although they are a new area of law in this state, are recognized by the New Jersey courts, but they must meet specific requirements to be enforceable. By working closely with a New Jersey divorce attorney, you could ensure that your postnup is valid and will be enforced by the courts if you ever decide to pursue a divorce. A valid postnup agreement will:
- Be in writing
- Be entered into by voluntary spouses
- Have fair and reasonable disclosures from both spouses concerning their assets and liabilities
- Not be in violation of any laws or public policy
- Not be unconscionable
Both you and your spouse must be represented by your own attorneys in this matter; otherwise, the courts could find the agreement invalid. Your agreement must be signed after the date of your legal marriage but before the date of any divorce petition. It will go into effect as soon as it is signed by both parties.
Benefits of a Post Nuptial Agreement
Before deciding if you should draft and execute a postnup agreement with your spouse, it is prudent to consider the pros and cons as they apply to your marriage and financial situation. Ideally, it is better to have a prenup than a postnup as courts tend to honor them more, but a postnup agreement is often better and can make the divorce process easier than no agreement at all.
Financial security is one benefit. As with a prenup, a postnup can help ensure that your property and assets are protected in the way you want them to be from your ex-spouse in the event of a divorce. Another benefit is being able to pass your assets on to your children. If you pass away before your current spouse, a prenup can help ensure that some of your assets are given to your children from a previous marriage.
In some marriages where trust has been broken, a postnup with terms that are favorable to the other spouse is a way for one spouse to act on their renewed commitment to their spouse and the marriage. A postnup agreement can provide peace of mind that if a marriage does end, there is a clear path forward for what will happen that both spouses previously agreed upon. It can help simplify the divorce and reduce the emotional roller coaster that comes with getting divorced.
What Happens Without a Post or Prenup Agreement?
For couples who have a prenuptial or postnup agreement, the process of asset division in a divorce will be much easier. When one of these agreements do not exist, the law provides direction as to how assets should be divided if a couple cannot agree.
When tackling assets in a marriage dissolution, the first step for a couple, their attorneys, and the courts is to determine what property belongs to each spouse individually and what property belongs to the marriage. In general, property owned by each spouse prior to their marriage will remain the property of that person and not be at risk during the divorce process. This could also include any property received by one spouse as a gift or an inheritance.
Property that was acquired by either spouse or both spouses together after they were legally married is then subject to division. Each spouse could negotiate with the other or even work with professional mediators to come up with an agreement involving the division of your assets. If the division of assets is left up to the courts, the following factors may be considered:
- The duration of the marriage
- The age, as well as the physical and emotional health, of each spouse
- The economic conditions of each spouse
- The current value of the property to be divided
- The tax implications of the proposed distribution to each spouse
- The debts of each spouse
- The established standard of living during the marriage
- The contribution of each party to the acquisition, depreciation or appreciation of the marital property, as well as the contribution of one of the spouses as a homemaker
- Each spouse’s contribution to the training, education or earning capacity of the other
- The income and earning capacity of each spouse considering their education, skills, work experience, training, custodial responsibilities as well as the time and expense that would be required to obtain sufficient training in order to be self-supporting at a standard of living similar to that of during the marriage
- Any written agreement signed by the spouses before or during the marriage regarding property division
Create Your Postnup Today with a New Jersey Divorce Lawyer
If you are ready to learn about how a postnup agreement could benefit you and your family, we are waiting to speak to you. Our skilled attorneys could help you create a postnup that includes your wishes if your marriage one day ends in divorce. Call Petrelli Previtera Schimmel, LLC today at (215) 523-6900, chat with a live agent, or schedule your consultation online to get started.