Limitations of Postnuptial Agreements in New Jersey
Creating a postnuptial agreement is a great way to protect assets if marriage ends up in divorce, particularly when the assets have been acquired during the course of the marriage. While there are many advantages to creating a postnuptial agreement, it is also important to know the limitations of postnuptial agreements in New Jersey. Certain things cannot be included in the agreement under New Jersey law. If the Court finds impermissible issues addressed in a postnuptial agreement, the Court will decline to enforce the portions of the agreement addressing those issues.
If you have questions about postnuptial agreements, it is best to contact a family law attorney who is familiar with the limitations of postnuptial agreements in New Jersey.
Postnuptial Agreement Limitations Concerning Children
Postnuptial agreements are intended to address and resolve a married couple’s financial issues. In terms of addressing issues concerning children, a postnuptial agreement may address the couple’s children’s or either party’s children from a prior marriage’s inheritances. A postnuptial agreement cannot, however, address child support and child custody. The overarching premise of this prohibition is that the financial needs and best interests of children cannot be determined in advance and must be determined at the time of the divorce. Additionally, New Jersey law states that child support and other financial support for children belongs to children, not their parents. Accordingly, the Court will calculate child support based on the financial means of the parents and the needs of the children, rather than enforce a negotiated agreement reached between their parents. The same concept applies to child custody. The Court will determine custody based on the best interests of the children at the time, rather than enforce a custody arrangement negotiated between their parents.
Other Postnuptial Agreement Limitations
One of the requirements of a postnuptial agreement is that it must be fair and equitable. It must be fair to both spouses and cannot leave one spouse in an extremely unequal financial position as compared to the other spouse. If a spouse wants to create an agreement that gives one of the spouses all the marital assets in the event of a divorce, leaving the other spouse with nothing, the Court will not enforce such an agreement. A family law attorney can advise a spouse whether the terms of a postnuptial agreement are fair and equitable under the circumstances.
Another limitation on postnuptial agreements is a spouse’s failure to disclose all assets to their spouse. This is not permitted. Spouses entering into a postnuptial agreement must fully disclose all their assets to the other spouse. The agreement may be limited or even declared wholly invalid if one of the spouses purposely hides assets or refuses to disclose their assets in full.
Postnuptial agreements in New Jersey are also limited by other laws and public policy. If, for instance, one aspect of the agreement has to do with funds illegally obtained during the marriage, the postnuptial agreement cannot divide these funds between the parties. As another example, a postnuptial agreement cannot impose oppressive terms upon one of the spouses as a condition of remaining married. The Court would invalidate these kinds of terms or even decline to enforce the entire agreement.
A Court will also likely invalidate a postnuptial agreement if one of the spouses did not have an independent attorney of their own in negotiating and signing the agreement.
Discuss Limitations of Postnuptial Agreements with a New Jersey Attorney
No one wants to go through with creating a postnuptial agreement only to find out that the Court declines to enforce it. If you and your spouse wish to resolve financial issues that have come up during the marriage and ensure that the Court enforces an agreement on these issues if the marriage ends in divorce, make sure you understand the limitations of postnuptial agreements in New Jersey.
Moskowitz Law Group is here to help you with any type of marital agreement, including postnuptial agreements. Contact us for a free case evaluation so we can help you navigate the preparation of your postnuptial agreement.
