The Perils of Writing Your Own New Jersey Post-Nuptial Agreement

A New Jersey post-nuptial agreement (unlike a prenuptial agreement) is created and entered into after a couple already has been married. In New Jersey, these agreements can play a vital role in clarifying financial rights, property ownership, and expectations if the marriage should end up in divorce court. With that duly noted, drafting a New Jersey post-nuptial agreement without professional legal assistance can result in truly serious pitfalls. We take a moment to explore some of the more significant perils associated with writing your own post-nuptial agreement.

Complex Legal Standards for Enforceability

New Jersey courts impose strict requirements when it comes to enforcing the terms and conditions of a New Jersey post-nuptial agreement. The agreement must satisfy a number of fundamental requirements that include:

• Entered into voluntarily
• Entered into without coercion
•  Entered into with full financial disclosure from both parties

A New Jersey post-nuptial agreement also cannot be what is known as “unconscionable” at the time it is signed or at the time it is enforced. The problem is that a do-it-yourself agreement often overlooks these legal standards. This can result in legal vulnerabilities that have the potential to render the entire agreement invalid and unenforceable.

Inadequate Financial Disclosure

Another of the more significant mistakes couples are apt to make when drafting their own post-nuptial agreement is failing to provide comprehensive financial disclosure. Courts in New Jersey expect both spouses to fully disclose financial information that includes:

• Income
• Assets
• Debts
• Future earning capacity

An incomplete disclosure, even if not intentional, can lead a judge to throw out the agreement in its entirety when enforcement of its terms is sought. later. Without suitable legal guidance, many couples underestimate how much financial information must be shared.

Risk of Unconscionable Terms

Agreements written without legal expertise may run the risk of including terms that heavily favor one spouse over the other. This can occur intentionally or unintentionally. By way of example, a provision leaving one spouse with virtually no property or support could be deemed unconscionable. In these cases, New Jersey courts tend to be quick to strike down such post-nuptial agreements. By attempting to write an agreement yourself, you truly run the risk of spending time and emotional energy on a document that ultimately has no legal effect whatsoever.

Overlooking Statutory and Case Law Requirements

New Jersey has a number of statutes and case law that governs the creation and application of marital agreements of different types. For instance, court rulings over the years have refined what constitutes “fairness” and “voluntariness” in the context of marital contracts. A self-drafted post-nup rarely reflects these nuances that are well-known to trained legal professionals. Without awareness of these crucial precedents, couples may unknowingly create provisions that conflict with existing law, opening the door for the agreement to be challenged later.

Potential for Future Litigation

Another of the primary reasons why people create a post-nuptial agreement is to reduce conflict in the event of divorce. The stark reality is that an agreement without legal assistance can create more disputes rather than it eliminates. Ambiguous language, missing definitions, or contradictory provisions can force a court to interpret the agreement, sparking costly and emotionally draining litigation. Having a professional draft the agreement significantly reduces this risk by ensuring clarity and precision.

Strain on the Marital Relationship

Drafting a post-nuptial without professional legal assistance can also put unnecessary strain on a marriage. For example, if one spouse drafts post-nup terms without input for the other, the other spouse may feel coerced or mistrustful. This perception alone can undermine the voluntariness of the agreement in the eyes of a court called upon to assess its validity. A lawyer-assisted process ensures that both spouses have independent representation and that negotiations proceed fairly, protecting not just the agreement but also the relationship.

False Sense of Security

Finally, arguably the greatest danger of writing your own post-nuptial agreement is the false sense of security it might create. Couples may believe they have protected themselves when, in fact, they have created an agreement that is unenforceable. They may make financial or personal decisions based on that assumption, only to face devastating, unsettling consequences during divorce or estate proceedings. Professional legal drafting ensures that the agreement provides the protection it promises. If you have any questions concerning a Post​-Nuptial Agreement in New Jersey, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.