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Blogs from October, 2019

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Marital agreements involve a broad range of contracts related to marriage, divorce, and other domestic relationships.

Most marital agreements fall into the following categories:

  • Property settlement agreements: Contracts between persons who have—or are about to—separate or divorce.
  • Prenuptial agreements: Contracts between prospective spouses contemplating entering into marriage.
  • Postnuptial agreements: Contracts between married spouses governing their property rights and responsibilities.
  • Reconciliation agreements: Contracts between separated persons who intend on getting back together.

Because marital agreements qualify as contracts, basic principles of fairness govern the enforceability and validity of a marital agreement’s provisions. As such, marital agreements that were procured via fraud, undue influence, or coercion are invalid. Additionally, those terms in an agreement that a court deems unconscionable are also unenforceable.

Property Settlement Agreements

Most issues where a couple decides to separate or divorce are resolved through the development and incorporation of a property settlement agreement. Upon the conclusion of divorce proceedings, the court will incorporate the terms of the parties’ settlement in its final judgment granting legal separation or dissolution of marriage.

The terms of a property settlement agreement touch on the essential aspects of divorce cases, such as property division, alimony, child custody, and child support.

Prenuptial Agreements

A prenuptial agreement—also known as a premarital or antenuptial agreement—is a written contract concerning the prospective married couple’s property rights in the event their marriage ends through divorce or death, especially in terms of inheritance rights. Most prenuptial agreements are established between a couple, where one or both of the parties have already experienced a divorce and have children from their previous marriage.

Many prenuptial agreements concern the characterization of property, creating a clear line of demarcation between property that qualifies as marital property subject to division at the end of the marriage, and property that constitutes a spouse’s separate property, that is not divisible upon the marriage’s end.

Under New Jersey Statute § 37:2-3, a valid premarital contract forms when the parties reduced its terms to a writing containing a disclosure of their assets and executed by both spouses. Furthermore, courts encourage the parties to retain independent legal counsel before signing a prenuptial agreement. However, independent legal counsel is not a required formality for a valid prenuptial contract.

The following provisions are generally enforceable in a prenuptial agreement:

  • The parties’ rights and responsibilities to marital or separate property
  • The parties right to use, transfer or dispose of property
  • How property is disposed of upon the marriage’s end
  • The modification or termination of spousal support
  • The creation of a will or trust
  • The rights and disposition of death benefits under a life insurance policy
  • Other provisions concerning the parties’ rights and obligations, if not contrary to public policy

A court will not enforce all provisions regarding the issues that arise in separation or divorce proceedings. For example, any provision that attempts to adversely impact a child’s right to receive financial support is unenforceable at law. The court will also refuse to enforce a premarital agreement containing a parenting plan.

Postnuptial Agreements

A postnuptial contract covers matters similar to what a typical prenuptial agreement covers, except that the couple forms the arrangement as a married couple. A couple may seek a postnuptial contract to update the terms of their agreement as outlined in a prior postnuptial contract or initial prenuptial agreement. Such agreements are enforceable only to the extent allowed by public policy.

Reconciliation Agreements

A less common marital agreement involves the terms of an arrangement between previously separated individuals who plan on rekindling their marriage. However, reconciliation agreements present unique concerns regarding enforcement.

Courts have outlined the following judicial guidelines for enforcing a reconciliation agreement:

  • A court must first determine that the parties promised to resume marital relations when the right between then was substantial
  • A party’s condonation of conduct that qualifies as a fault-based divorce ground constitutes contractual consideration
  • An oral agreement of reconciliation involving the transfer of real property must comply with the statute of frauds
  • The agreement’s terms must be fair at the time they were made
  • Changed circumstances have not made literal enforcement of the agreement’s terms unfair

Retain the Professional Services DeTommaso Law Group, LLC

Are you curious about whether a marital agreement will benefit you and your marriage? If so, you should consult an experienced legal professional at DeTommaso Law Group, LLC. We have experience advising individuals and their families about issues that a martial agreement can affect, such as property division and spousal support. You can count on us to deliver quality legal counsel to help ensure you understand how a marital agreement will impact your legal rights and responsibilities.

Consult DeTommaso Law Group, LLC by calling us at (908) 274-3028 or contacting us online today.