The Enforceability of Postnuptial Agreements

When Postnuptial Agreements May Be Unenforceable

A 2015 survey from the American Academy of Matrimonial Lawyers found that postnuptial agreements are increasing in popularity. However, this does not always tell the whole story. Even when a couple has a signed postnuptial agreement, it may not always be enforceable by the court if certain circumstances apply. It’s is always best to have your postnuptial drawn up by a divorce law firm.

Courts Will Start by Paying Close Attention to the Agreement

In general, you should expect that a postnuptial agreement will receive scrutiny from the court before it decides to enforce the agreement. As your family law attorney would advise you, these agreements are not usually signed under the best of circumstances in the marriage. Usually, there has been some strain in the marriage, and the couple is deciding whether to stay together. As a result, these types of agreements involve two parties under strain, and the potential for abuse is high.

If you have signed a postnuptial agreement and are now in the process of divorce, it is vital to have a divorce lawyer review the agreement. In addition, you should fully describe for your family lawyer all the circumstances that led up to the agreement. While you have a fully signed and executed agreement, enforceability is not automatic.

A Postnuptial Agreement Is a Contract

It is important to remember that a postnuptial agreement is the same as any other contract. There is a legal relationship between the two spouses that is memorialized by a written piece of paper that each of them signs. This document contains legal obligations for each in the event of a divorce. Thus, when you are thinking about the validity of a postnuptial agreement, it is important to think of it in contractual terms.

While many contracts are enforceable by the court, there are circumstances in which a court may void the contract. Usually, this is when a judge has found something wrong in the process that led to the signing of the agreement. The presumption would be that a contract is valid unless one of the parties to it can show that there was something wrong. Otherwise, the court would hold both parties to what they agreed to.

Noncompliance With New Jersey Law

First, the format of the agreement must follow New Jersey law. The state has a statute that governs prenuptial agreements. Case law, however, governs postnuptial agreements. Specifically, the agreement must be signed and in writing and executed by a notary. There is no such thing as an oral postnuptial agreement. It can only be signed after each party has made a full and fair disclosure of their assets. A postnuptial must be fair and equitable.


divorce law firmFraud in a postnuptial agreement can take a number of different forms. The most common is when one spouse misrepresents or hides assets from the other spouse and does not include them in the agreement. Courts will almost always refuse to enforce a contract when they find that one party defrauded the other.

Fraud does not only mean that one spouse hid or concealed assets. If one spouse undervalued assets for purposes of the agreement, it can also be fraudulent. Courts give you the right to sue when you discover fraud even after the property has already been distributed. The rule of thumb is that all debts and assets must be fully and accurately disclosed when the postnuptial agreement is being negotiated so that each party can ultimately make their own decision about whether to sign the contract.

Duress: Seek a Divorce Law Firm Before Agreeing to a Postnuptial

Courts want to know that each person who signed the postnuptial agreement did so of their own free will. This means that they were free from any sort of threats or coercion in the process of negotiating the agreement. The court truly wants the postnuptial agreement to be a “meeting of the minds,” and one spouse is not necessarily in their right mind when they feel that they are under threat from the other spouse.

Duress could include threats to cut off one spouse’s access to the couple’s joint bank account. It could also include threats to change financial arrangements to cut out that spouse unless they sign the agreement or even a threat to divorce them over financial matters unless they agree. If you have already signed the agreement and feel that you were coerced in doing so, make sure to discuss the circumstances with your divorce attorney.

Unconscionable or Extremely One-Sided: Don’t Sign if Not Reviewed by Your Divorce Law Firm

In general, contract agreements cannot be so one-sided that they are grossly unfair to one of the parties. When spouses are signing a postnuptial agreement, they must make sure that the agreement is balanced. If the agreement very clearly favors one party over the other, a court may decline to enforce it. “Unfair” could mean that the postnuptial agreement gives all or nearly all the couple’s property to one spouse while leaving the other spouse with nothing.

Courts may hesitate to enforce agreements that have ridiculous terms. If you are in the process of negotiating a postnuptial agreement, it is important not to overreach because that could put the entire agreement at risk. If you have signed an agreement, it must be fair and equitable.

It is important to note that a postnuptial agreement cannot award sole custody to one parent in the event of a divorce with little to no rights for the other parent. In general, most postnuptial agreements would stay away from custody matters entirely since that is a matter for the family law courts and generally cannot be resolved in a postnuptial agreement.

No Capacity to Sign and When to Seek a Divorce Law Firm

When you sign a contract, you must have your full mental capacity. If someone is not in their right mind, courts may let them out of the contract that they signed. For example, if one spouse suffered from early stage dementia or some severe psychiatric condition, a judge may find that they did not have the full capacity to sign an agreement.

It is crucial to consult with a divorce lawyer for any matters involving a postnuptial agreement. The same goes for the process of signing the agreement and then determining whether a prior contract would be enforceable. In fact, an agreement may be unenforceable on its own if each person was not independently represented by counsel when they signed the agreement.

To learn more about the enforceability of postnuptial agreements, contact a New Jersey family law attorney at the firm of Lawrence Law at (908) 645-1000 today. We have offices in Red Bank and Watchung, or our divorce attorney can meet with you virtually.

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