What Is a New Jersey Postnuptial Agreement?
A New Jersey postnuptial agreement is a legal contract between spouses that they enter after the wedding. Unlike prenuptial agreements, postnups happen after you’re legally married. Postnups provide many advantages, including the ability to protect assets acquired during the marriage and update previous arrangements like prenups.
Without a postnup in New Jersey, courts will default to equitable distribution laws (NJ Rev. Stat. § 2A:34-23.1). This means dividing debts and property fairly, but not necessarily equally, by default if divorce happens. To make their decision, the courts will consider various factors, including:
- the spouses’ age and physical and emotional health
- the duration of the marriage
- the property or income that each spouse brought to the marriage
Postnuptial agreements are enforceable in New Jersey, but they must be in writing, notarized, and signed by both spouses. The spouses must also fairly disclose all relevant information and assets before signing. Courts will check for these requirements if a conflict arises over the postnup.
Per Steel v. Steel, 467 NJ Super. 414 (App. Div. 2021), the courts in New Jersey scrutinize postnups more carefully than prenups because they are “inherently coercive.” That’s because they’re ripe with the opportunity for one spouse to use the threat of divorce to get the other to sign.
How to Write a Postnuptial Agreement in New Jersey
To create a valid postnuptial agreement for New Jersey, you must follow certain steps:
- Enter personal information. Start by listing the spouses’ full names and the date and place of the marriage.
- Discuss financial information. Per Pacelli v. Pacelli, 319 NJ Super. 185 (App. Div. 1999), New Jersey law requires full and fair disclosure of each spouse’s assets, liabilities, income, and financial obligations.
- Define property ownership. Outline how to divide the marital property if the marriage ends.
- Decide on the marital home. State whether the marital home will be divided if the marriage ends.
- Divide household expenses. Explain the sharing of everyday costs, like groceries and insurance, during the marriage.
- Address pet ownership. State whether the parties acquired any pets during their marriage. If yes, state who will take ownership of the pets if the marriage ends. If more detail is needed, consider attaching a separate pet custody agreement.
- Establish spousal support terms. Under NJ Rev. Stat. § 2A:34-23, courts can award spousal support (alimony) based on various factors. However, couples can override these with a postnup. They can also choose to waive alimony entirely.
- Include final provisions. These may include how to resolve disputes related to the agreement and whether one spouse will financially support the other in case of disability.
Sample New Jersey Postnuptial Agreement
View a free New Jersey postnuptial agreement to learn the format. Then, create your own using our document builder and download it in PDF or Word format.
Legal Requirements and Considerations for New Jersey Postnups
Per NJ Rev. Stat. §§ 37:2-31 to 37:2-41, postnups and prenups in New Jersey share some of the same requirements in determining validity. To be enforceable, a postnup must meet the following requirements.
Signing Requirements
Per Pacelli v. Pacelli, 319 NJ Super. 185 (App. Div. 1999), both spouses in New Jersey must sign a postnuptial agreement for it to be valid. While notarization isn’t explicitly required, it’s strongly recommended to prove that both parties signed the agreement willingly and with full knowledge. The agreement must also be in writing.
Legal Representation
Per NJ Rev Stat § 37:2-38, it is grounds to set aside a prenup if both parties did not have counsel or the party without counsel failed to execute a written waiver of their right to counsel. Courts would likely take the same view of a postnup agreement if its validity is challenged.
Excluded Terms
New Jersey law bars couples from including certain terms in a postnup:
- Child support: Under NJ Rev. Stat § 2A:34-23, parents can’t limit or waive future child support obligations. The court determines these matters based on the child’s best interests.
- Child custody and visitation: Per NJ Rev. Stat. § 9:2-4, spouses cannot override the court’s ability to make decisions regarding visitation and custody of children. The court makes these decisions based on the child’s best interests during separation or divorce.
Waiving Right to Elective Share
In New Jersey, when someone dies, their spouse usually has the right to claim around a third of the deceased spouse’s estate, even if the will says otherwise. This is called the elective share.
However, if both spouses agree, they can waive or give up this right in a postnuptial agreement. According to NJ Rev. Stat. § 3B:8-10, the waiver must be:
- in writing
- signed after full and fair disclosure
- made voluntarily
This waiver is a way for blended families to protect the inheritance of their children from previous marriages. Without a waiver, if one spouse dies, the other spouse could still claim a large chunk of the estate, even if the will says everything should go to the kids from the previous marriage.
