Need a Postnuptial Lawyer in New Jersey?

Unlike prenuptial agreements made before marriage, postnuptial agreements are created after the wedding. In any state or county, these agreements can solve financial and legal issues that may arise between couples down the road.

Postnuptial agreements offer couples a measure of control over their future, empowering them to feel as financially secure as possible when entering their new marriage. This isn’t about whether the marriage or relationship will work out; rather, a postnuptial agreement increases trust and security for both parties.

At Rosenblum, our experienced family lawyers will ensure that postnuptial agreements comply with New Jersey laws, represent couples’ wishes, and are enforceable in a New Jersey court of law.

What is a Postnuptial Agreement?

Executed after marriage, a postnuptial agreement specifies how a couple’s assets and debts will be divided in the event of a divorce or the untimely passing of one spouse.

There are two main differences between a prenuptial agreement and a postnuptial agreement. The first has to do with timing. While a prenuptial agreement is made before the marriage, a postnuptial agreement is created after. 

Second, because it is signed after marriage by definition, a postnuptial agreement will be scrutinized by a court more closely than a premarital agreement when deciding whether or not it is enforceable.

Key Provisions of a Postnuptial Agreement in NJ

Postnuptial agreements typically contain the following provisions, among others.

Sharing of Assets

By having a postnuptial agreement, partners can decide how their assets will be shared if they separate or divorce, or when one of them dies. They can also agree on who will handle shared debts that were taken on during the marriage, including loans, credit card debt, and home mortgages that may be in both spouses’ names.

If a postnuptial agreement does not specify a division of assets, the couple will rely on the courts to decide this issue. Ne­w Jersey follows a system of equitable distribution, where the­ court portions resources in a manner it conside­rs fair and sensible. This may or may not consist of splitting possessions evenly.

Alimony and Spousal Support

If both parties agree, a postnuptial agreement in New Jersey can outline the terms and conditions of alimony and/or spousal support.  However, a postnuptial agreement cannot dictate child support and custody matters. Rather, the sensitive matter of what happens to the children is determined based on the child’s best interests at the time of separation.

Debts

A postnuptial agreement can specify how to deal with any de­bts accumulated be­fore and during the marriage. This can prevent any stressful surprises and fights if divorce­ happens, as each person will know cle­arly what financial duties are their responsibility.

Why Consider a Postnuptial Agreement?

There are many reasons why a couple may want to draft a postnuptial agreement. 

1. One of the most common reasons for a postnup is to protect the inheritance of any children the couple has had together. 
2. A postnuptial agreement can state which assets should stay within the­ family or be considered se­parate personal property rathe­r than shared. This can help avoid financial disputes if the couple separates.
3. Couples working through marital difficulties may use a postnuptial agreement to prepare for future marital reconciliation agreements (a legal agreement to stay married often used to resolve marital disputes). Marital reconciliation agreements set forth financial terms and conditions contributing to a healthier, more transparent relationship.
4. Over time, couples may experience changes in their financial situation due to many unforeseeable factors, ranging from inheritance and business ownership complexities to unemployment or housing changes. A postnup can help couples deal with these potential changes.
5. A prenuptial agreement made before marriage might eventually become outdated or no longer effectively serve the couple’s interests. A postnup allows for prenup changes to be made after the event of marriage. 
6. Recently, couples have started using post-nuptual agreements to help save a marriage in which one party has committed adultery.

Legal Requirements for Postnuptial Agreements in NJ

In New Jersey, the statutes governing prenuptial (also known as premarital or antenuptial) agreements are outlined in the New Jersey Premarital Agreement Act (NJPAA), which is found in N.J.S.A. 37:2-31 to 37:2-41. 

However, New Jersey law does not directly address postnuptial agreements. Instead, New Jersey uses common law principles and judicial decisions to govern postnups. 

The leading case addressing postnuptial agreements in New Jersey is Pacelli v. Pacelli. Superior Court of New Jersey, Appellate Division, 1999. This case underscores the legal prerequisites for such an agreement to be considered enforceable and fair.

• Full disclosure. To be enforceable, a postnuptial agreement must be fair and made only after full disclosure of relevant information regarding the parties’ assets. 
• No coercion. Both parties to a postnuptial agreement must have signed it free­ly without pressure. 
• Fairness and conscionability: Pacelli v. Pacelli  states that the circumstances under which the agreement was entered into must be “fair to the party charged,” and the agreement’s terms “must have been conscionable when the agreement was made.” In other words, a postnuptial agre­ement, eve­n if entered into willingly, will not be enforced if it contains terms that are unfair to or overbearing towards one or both of the parties.

In addition, like other contracts, a postnuptial agreement in New Jersey must:

• Be in writing
• Be signed by both parties
• Not contain vague or ambiguous language.

Finally, it is important to update a postnuptial agreement after major events such as the birth of a child, changes in economic status, or a significant relocation. Failure to do so can jeopardize the agreement’s enforceability. 

The Process of Creating a Postnuptial Agreement in NJ

In general, creating a postnuptial agreement involves the following steps.

1. Discuss goals. The couple should discuss what they want to accomplish with the agreement, as well as any obstacles they foresee. This may involve conversations about money, property, debt, or any other matters that may be important to the couple.
2. Draft the agreement. For this step, we strongly suggest that each party consult an experienced family law attorney who can ensure that the agreement complies with New Jersey law and includes all vital prison provisions.
3. Seek legal review. Ask the attorneys to review the agreement draft to ensure that each person’s interests are adequately represented so that it will be considered fair and enforceable.
4. Sign the agreement. Both parties must sign the agreement before a notary public when it is final. 

Case Studies and Examples

In Gimbelman v. Gimbelman (2019), between Jodi Gimbelman (the plaintiff) and Steven Gimbelman (the defendant), their tumultuous divorce proceedings lasted nearly four years and protected a custody trial. However, they decided to solve all other claims through arbitration. 

The main conflict was approximating the value of Steven’s share in his family’s business, a matter specifically dictated by a postnuptial agreement. This agreement set the value of Steven’s share as of their marriage, following New York law. But it didn’t say which specific law should apply for valuing his share when they filed for divorce.

The arbitrator, a retired family court judge, carefully reviewed the evidence. Although the arbitration agreement didn’t specify which law to use, the arbitrator must decide based on the relevant laws.

The arbitrator decided that New York law should be used to evaluate the value of Steven’s share when they filed for divorce, even though they had moved to New Jersey. Thus, the court’s decision in Gimbelman v. Gimbelman shows how important it is for marital agreements to use clear, non-arbitrary legal language to avoid confusion and ensure fair outcomes.

In Steele v. Steele (2021), legal intervention resolved specific issues surrounding the nature of the marital agreement between the parties. The family court initially thought the marital agreement was an enforceable premarital agreement, but the appeals court found that it was more similar to an agreement made during marriage and thus required more scrutiny.

Steele v. Steele highlights the importance of considering the circumstances surrounding the negotiation and execution of such postnuptial agreements, especially regarding issues of coercion and fairness. This ruling may influence future cases involving similar marital agreements in the state.

FAQs on Postnuptial Agreements in New Jersey

Call Rosenblum for a Consultation About Your Prenuptial Agreement

A we­ll-thought-out postnuptial agreement clearly states how asse­ts and duties will be split should the couple get divorced, providing a measure of stability and predictability in a marriage. It prevents potential problems and misunde­rstandings later on.

Making a postnuptial agreeme­nt requires careful thinking and fully grasping the­ couple’s unique financial situation. It’s crucial to be­ sure the agree­ment is fair and represents what the couple­ wants.

This is where a lawyer’s guidance­ is critical. An expe­rienced attorney can navigate­ New Jersey’s rules for postnuptial agreeme­nts, ensuring the document is le­gally binding and can be enforced. Call today to talk to our experienced team about making a postnuptial agreement for New Jersey