QUESTION

I’m thinking of making a postnuptial agreement, is that a good idea.? Will it be considered later if I file for divorce? Thanks in advance.

Asked on Dec 16th, 2020 on Family Law - New Jersey
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Marriage is not perfect and I’m thinking of postnuptial agreement for now particularly since my wife has children from a prior marriage. Will such agreement be considered if I file for divorce later?
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2 ANSWERS

Divorce Attorney serving Short Hills, NJ at Diamond & Diamond, P.A.
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Absent a valid prenuptial agreement, a postnuptial agreement is generally speaking not worth the paper it is written on. Over the course of years, I have seen lawyers prepare postnuptial agreements for clients, telling them that it will be helpful to a court to know what you and your spouse thought was "fair" since you and she were having marital difficulties. Wrong! If you want a divorce, then hire a divorce lawyer and move on with your life. If you are unhappy but decide to stay married, then you made a moral choice ( for the sake of the children, etc) and that decision has consequences. I cannot tell someone to stay married or get a divorce but if you decide to stay married, that piece of paper is not going to be a salvation for you nor is it going to help you at a later date when you do decide to divorce. There are only "extremely limited" settings where a postnuptial agreement has been found by a court to be enforceable in a divorce setting... and start off with the presumption that your setting will not meet that test. Sorry but I think it's better to be blunt than to suggest to you that it is going to help you gain a tactical advantage in a divorce at a later date. Even if your spouse has a lawyer represent her in the signing of the agreement, it is still not enforceable. As a general statement, I think most people who ask a lawyer to prepare postnuptial agreements do so to make themselves feel better, knowing that the terms will not be enforced by the court and presume that the lawyer who drafted the document will have a letter in his / her file confirming that he told you that it was not enforceable but that you wanted it drafted anyway.  If a lawyer actually does tell you that it is enforceable in a divorce setting and is willing to prepare such a document for you, then  he/she should be willing to sign a document stating: "I have reviewed New Jersey statutory and case law and have advised you that the terms of this postnuptial agreement shall be binding upon your spouse in the event of a future divorce and I have advised you that under NJ law, by virtue of your spouse signing this document, she shall not be entitled to any claim of support or distribution of assets other than provided for her in this agreement" 
Answered on Dec 29th, 2020 at 8:56 AM

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Family and Matrimonial Law Attorney serving Parsippany, NJ
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Thank you for your question. Considering such an agreement can be very stressful because the future of the relationship may be in question. A post nuptial agreement is viewed similarly as a pre-nuptial agreement by the Courts, depending on the timing of its execution. It is not a bad idea so long as you both have the benefit of counsel before signing anything. Many people have entered into agreements with their spouses that are legally deficient and/or against their best interests and then find that the Court holds them to those terms during a divorce. Additionally, you should each have separate counsel. A Court may decide to invalidate an agreement later on if one of the parties did not have the benefit of legal counsel at the time of execution. A post nuptial agreement will be considered as long as it was executed properly and willingly by both parties. The best way to get answers regarding your specific situation is to schedule a Consult with an attorney as. you will receive legal advice tailored to your unique circumstances and understand the best way to move forward. A post nuptial agreement must be drafted carefully otherwise it could do more harm than good if the parties should decide to divorce later on.  
Answered on Dec 17th, 2020 at 8:30 AM

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