Reconciliation agreements are a specific type of post-nuptial agreement. Spouses generally enter into post-nuptial (mid-nuptial) agreements during marriage for the general purpose of deciding how they would distribute assets and debts in the event of a divorce. The specific purpose of a reconciliation agreement, however, is to help a couple heal a marriage after there has been an incident or a series of incidents serious enough to cause the couple to separate. One spouse may have announced an intention to divorce, or may have even filed divorce papers. By entering into a reconciliation agreement, the spouse considering divorce can agree to remain married and dismiss any pending divorce case in exchange for a promise by the other spouse to give up some kind of financial or property right.
New Jersey Reconciliation Agreements
New Jersey courts have sometimes upheld reconciliation agreements, as their purpose in general seems to comport with public policy promoting marriage and discouraging divorce. As with other post-nuptial agreements, the court will consider the existence of “consideration” (meaning that each party must have exchanged something of value, though not necessarily equal value), and will also assess the fairness of the agreement both at the time it is executed and at the time one spouse seeks to enforce it.
Consideration in Reconciliation Agreements
The consideration by one party to a reconciliation agreement is often just a promise to remain married. In the case of a post-nuptial agreement entered into in the normal course of an intact marriage, this would not amount to valid consideration, as such a promise offers nothing in addition to that which has already been promised. With a reconciliation agreement, however, if the current condition of the marriage warrants initiation of divorce proceedings, a promise to refrain from filing for divorce or to dismiss an already filed complaint may be adequate. A court will look at the marital rift which preceded the reconciliation agreement and consider whether or not grounds for divorce existed when the parties executed the agreement. If they did, an agreement to stay married is a meaningful promise with independent value.
Enforcing Reconciliation Agreements
A court assessing enforceability of a reconciliation agreement will look very closely at the terms. The party seeking enforcement is likely to bear the burden of proving that the agreement is valid. If the terms of a reconciliation agreement are vague, or there is no significant new financial commitment made by at least one spouse, a court is not likely to get involved in enforcing the agreement. For example, an agreement by one spouse to dismiss a divorce complaint in exchange for an agreement by the other to refrain from flirting with people other than the spouse would probably not be enforceable. There would be nothing preventing the party dismissing the complaint from simply refiling it, and no good way for a court to assess exactly what behavior constitutes “flirting.”
The more specific your reconciliation agreement is, the greater the chance that a judge will enforce it. You may want to include details about the rift in the marriage and the reasons that you and your spouse believe that an agreement by one of you to refrain from filing for divorce or to withdraw filed court papers constitutes consideration. You may also wish to specify a minimum time period for the reconciliation. If one of you is giving up a property right or making a promise to increase financial support for the other in the event of a divorce, be clear about exactly what is being promised.
Because judges have so much discretion in determining fairness, it can be difficult to predict in advance whether or not a reconciliation agreement will be enforced. Getting advice from an experienced family law attorney before entering into the agreement is critical. Generally speaking, a court will require an agreement to be in writing and signed by both parties. Both parties must have the opportunity to be represented by independent counsel. Both parties must also enter into the agreement voluntarily, and both must provide each other with full financial disclosure, including attaching statements of assets specifically describing all property, income and source of income, and all debts or other financial obligations.
As with other postnuptial agreements, the enforceability of a mid-marriage agreement will be strengthened if each of you states your understanding regarding the rights you would have in a divorce without the reconciliation agreement, what your intentions are with respect to changing or clarifying such rights through the agreement, and why each of you considers the agreement to be fair. Include certifications from your independent attorneys, and consider videotaping the signing of the agreement, memorializing statements by each of you that thoroughly establish the absence of any coercion or duress.
Please note: Reconciliation agreements are sometimes referred to as mid marriage agreements or mid-nuptial agreements. These are all types of post-nuptial agreements.
Our attorneys are experienced in handling New Jersey reconciliation agreements and all other types of post-nuptial agreements. If you are trying to heal a rift in your marriage and are interested in learning more about how a reconciliation agreement could help you, please contact us for more information.