As mentioned earlier, courts are more likely to invalidate a post-marital contract because spouses have a fiduciary duty to their spouse after marriage. The courts view these agreements with skepticism and criticism. Even for the possibility that a post-marital contract will be deemed valid and enforceable, you must be able to prove the following: No coercion, fraud or coercion: A post-marital contract cannot be a “take it or leave it” document. For example, a spouse may not say, “Sign this agreement or I will divorce you.” This would make the post-marital contract mandatory and therefore unenforceable. The marital problems to be solved by the reconciliation agreement must be important. Nicholson Court found that two extramarital cases addressed this factor. Reconciliation agreements are a specific type of post-marital contract. Spouses usually enter into postnuptial (half-marital) contracts during marriage to decide how they would allocate assets and debts in the event of divorce. However, the specific purpose of a reconciliation agreement is to help a couple heal a marriage after there has been an incident or series of incidents serious enough for the couple to separate. A spouse may have announced their intention to divorce or even filed divorce documents.
By entering into a reconciliation agreement, the spouse who is considering divorce can agree to remain married and dismiss any pending divorce case in exchange for a promise from the other spouse to waive some kind of financial or property right. The more specific your reconciliation agreement, the more likely it is that a judge will apply it. You may want to provide details about the breakdown in the marriage and why you and your spouse feel that an agreement by one of you not to file for divorce or to withdraw court documents filed is consideration. You can also specify a minimum match period. If one of you gives up a property right or promises to increase financial support for the other in the event of a divorce, you need to be clear about what exactly is promised. Independent legal counsel: As with prenuptial agreements, each spouse should hire their own lawyer to review the agreement. If a spouse does not retain the services of his or her own lawyer, the court will often examine a post-marital contract even more carefully to determine whether the contract is fair and equitable or whether a court cannot fully enforce the post-marital contract. Unlike a post-marital contract, courts tend to favor reconciliation agreements. This is because they are designed to preserve marriage rather than compensate for “indiscretion.” Reconciliation agreements have a much heavier burden of proof in determining the validity and applicability of agreements. The agreement must be reasonable, fair and equitable, and entered into in good faith to be enforceable. The contract may contain a variety of promises between the parties, such as .B.
an agreement to curb adulterous or addictive behavior, or an agreement to work less and focus more on family life, or a promise to spend more time with the children during the week. A reconciliation agreement is a post-uptial agreement that allows couples to give each other a chance to get their marriage back on track while setting the terms of a separation in advance if reconciliation fails or succeeds. This can help a couple after serious problems have occurred. This could be the result of marriage counselling or the help of a family law mediator. This agreement can also be an option if the couple no longer lives together but has not yet received a divorce. Our lawyers have experience dealing with reconciliation agreements in New Jersey and all other types of post-marital arrangements. If you are trying to heal a breakup in your marriage and would like to learn more about how a reconciliation agreement could help you, please contact us for more information. New Jersey courts have sometimes upheld reconciliation agreements because their purpose generally appears to be consistent with public policy that favors marriage and prevents divorce. As with other post-marriage contracts, the court will consider the existence of “consideration” (i.e., each party must have exchanged something of value, but not necessarily equivalent), and will also assess the fairness of the agreement both at the time of its execution and at the time when a spouse attempts to enforce it.
As with other post-marriage contracts, the applicability of a mid-marriage contract is enhanced when each of you explains your understanding of the rights you would have in the event of a divorce without a reconciliation agreement, what your intentions are in terms of changing or clarifying those rights through the agreement, and why each of you considers the agreement to be fair. Add attestations from your independent lawyers and consider recording the signing of the agreement on video to recall the statements of each of you that thoroughly prove the absence of coercion or coercion. A marriage contract has been discussed but never signed: Sometimes a engaged couple discusses the preparation and signing of a marriage contract, but for some reason this has never happened, so the spouses agree to draft a post-marital contract. A party`s review of a reconciliation agreement is often just a promise to stay married. In the case of a post-marital contract concluded in the normal course of an intact marriage, this would not constitute a valid consideration, since such a promise offers nothing other than what has already been promised. However, in the case of a reconciliation agreement, if the current state of the marriage justifies the opening of divorce proceedings, a promise to refrain from filing for divorce or to reject a complaint already filed may suffice. A court will deal with the adultery that preceded the reconciliation agreement and consider whether or not there were grounds for divorce when the parties signed the agreement. If they have, a deal to stay married is a meaningful promise with independent value.
A court considering the enforceability of a reconciliation agreement will look very closely at the terms. The party requesting enforcement may bear the burden of proving that the agreement is valid. If the terms of a reconciliation agreement are vague or if no substantial new financial commitments are made by at least one spouse, it is unlikely that a court will be involved in the execution of the agreement. For example, an agreement between one spouse to file a divorce action in exchange for an agreement from the other not to flirt with people other than the spouse would likely not be enforceable. Nothing would prevent the party rejecting the complaint from simply resubmitting it, and there would be no good way for a court to assess exactly what behaviour constitutes “flirting”. If you live in the Richmond, Chesterfield, Henrico and Harrisonburg areas and you think your marriage could end in divorce and would like to discuss creating a reconciliation agreement, call Cravens & Noll P.C. at 804-330-9220 or fill out our online contact form to schedule an initial consultation. We can discuss your situation, your legal rights and your best options for further actions. The court in nicholson v. Nicholson, a 1985 New Jersey case on reconciliation agreements, said, “Courts tend to favor reconciliation agreements to promote the state`s interest in preserving marriage, and will enforce them as long as they are fair and equitable.” In New Jersey, a reconciliation agreement can be enforced if it is fair and equitable. The agreement must be fair both at the time of its conclusion and at the time when it is to be applied.
What about the timing of signing a reconciliation agreement? Is it still possible to change course when a divorce has begun? It is possible for couples to enter into a reconciliation agreement before or after signing a property settlement agreement (PSA) or separation agreement. Standard PPE usually contains a provision that a subsequent comparison of the parties will not cancel the PPE unless the parties revoke the PPE in writing. Therefore, if this provision is also included in the reconciliation agreement, it does not matter whether the reconciliation agreement is entered into in anticipation of separation or the restoration of conjugal relations. It is important that the terms of the reconciliation agreement are tailored to your concerns and needs. Full and Complete Disclosure: There must be full and complete disclosure of all property and the reasons for requesting a post-marital contract. A judge can “confirm, ratify and include by reference” the consent of the spouses in the divorce decree, the court order to end the marriage. Once the divorce agreement has been confirmed, ratified and incorporated, it becomes part of the divorce decree and each spouse can apply for judicial enforcement of the conditions. Another advantage of these contracts is that they are “post-marital” contracts (as opposed to matrimonial agreements), and as such, the court is more likely to abide by the parties` terms if one of the parties tries to opt out. In Jersey, however, there have been no settled cases where the court has been asked to apply such agreements. Fair and equitable: The agreement must be fair and equitable to both parties at the time it is drafted and signed. A post-marital contract is a contract between two spouses. The agreement is similar to a marriage contract, except that it is signed during the marriage and not before the marriage.
A post-marital contract is often considered when the relationship between the spouses or the financial situation has changed. The most common reasons why a spouse wants to enter into a post-marital contract are: Over time, between the conclusion of the agreement and the time a party attempts to execute it, the financial situation of the parties may not have changed so significantly that the performance of the agreement has become unfair […].
