What is a Post-Nuptial Agreement and Why Do I Need One?

Perhaps a “post-nup” is a kind of less glamorous relation to the prenuptial agreement. A marriage between two people has already taken place. If the couple signed a pre-nup, didn’t have time or inclination to draw up a pre-nup, a post-nuptial agreement can create a positive contract between spouses now. In fact, spouses considering a post-nuptial agreement do so because they’re in an ongoing, living, and viable marriage.

Like a prenuptial agreement, the post-nuptial agreement seeks to protect one or both parties’ assets or income in the event of death or divorce. For instance:

• Bob and Sally enter into a post-nup agreement to signal the end of a marital conflict. Sally had an affair. She tells Bob about it and wants to fully commit to their relationship. Bob isn’t completely sure about how he feels about Sally’s admission, but he agrees that it’s a good time to review their assets. In the event of a future divorce, the post-nuptial agreement could help both Bob and Sally clarify questions about the division of marital property.

• Bill and Glenda discuss a post-nuptial agreement when Glenda learns she is coming into a multi-million dollar inheritance from her grandmother. Their marriage is solid. Bill has children from another marriage. A post-nup agreement can be used to protect Glenda’s inheritance. If they decide to build a larger, better home and Glenda uses some of her inheritance to buy it, the post-nup can safeguard her financial interests in the home.

Post-nuptial agreements are an emerging area of law in New Jersey. These agreements are certainly enforceable but they’re not viewed as “iron-clad” by the judiciary in New Jersey.

Follow two basic rules to safeguard a post-nuptial agreement:

1. Provide full and fair disclosure

2. Each spouse should engage separate legal counsel

In addition, consider the overarching theme of New Jersey case law regarding these agreements. Your agreement should be both fair and reasonable to both spouses.

The primary difference between a prenup agreement and a post-nup agreement is the period of time in which the agreement was reached:

1. A prenuptial agreement was written and entered into prior to marriage

2. A post-nuptial agreement is written and entered into after the couple is married

After a marriage happens, spouses maintain a fiduciary relationship. If there is a wide difference between the spouses’ net worth, a future court could question if the less well-off spouse was pressured to sign the post-nuptial agreement.

Consider that having a post-nuptial agreement is often better than not having an agreement of any kind. If the couple didn’t sign a prenuptial agreement and it makes sense to both spouses to write and sign a post-nuptial agreement that’s fair and reasonable now, that agreement could help the spouses in a future division of assets, death, or inheritance matter.

Davis & Mendelson is a full-service family law practice. Contact us to schedule a consultation at 866-560-9512.