Is a POST Nuptial Agreement right for you?
So what is a post-nuptial agreement? Unlike its pre-marital predecessor, the pre-nuptial agreement, a post-nuptial agreement is drafted after a parties’ marriage, at any time during the marital tenure, and is typically designed to protect individual assets and other rights and entitlements in the event of a divorce. Post-nuptial agreements, while enforceable, are subject to an extremely stringent and heightened level of scrutiny. This is particularly so in light of the fact that a discussion to enter into a post-nuptial agreement often times arises after a significant breach in the marital relationship, whether that be by way of an extramarital affair, an addiction suffered by one party, the incurring of significant debt by one party, or the secreting or dissipation of marital assets.
Pursuant to Pacelli v. Pacelli, 319 N.J. Super 185 (App. Div. 1999), post-nuptial agreements are enforceable provided that they are fair at the time they are made AND at the time they are sought to be enforced. A post-nuptial agreement may serve as a modification to an already existing pre-nuptial agreement, or it can be an entirely new document, and the initial and only agreement altogether. While commonly individuals might seek a post-nuptial in an effort to shield or protect a post-marital inheritance for example, most individuals seeking a post-nuptial agreement do so after there has been a significant breach in the marital relationship as set forth above. As a result, the integrity of a post-nuptial agreement, particularly when they are sought to be enforced (upon a filing of a Complaint for marital dissolution by one party), are viewed critically, and are traditionally subject to a highly fact-sensitive analysis in consideration of the circumstances which surround their entry. As such, the likelihood of these documents upstanding the rigors of a case-sensitive analysis are unlikely.
Given the highly fact-sensitive nature surrounding the entry into a post-nuptial agreement, it is imperative that individuals seeking same, as an alternative to divorce, or with the intention of protecting an inheritance as set forth in the example above, seek the timely advice of competent legal counsel.