Jan

15

Finding The Strength To Pick-Up The Phone

Filed Under Divorce & Separation, Family Law Basics, Impact on Children | Leave a Comment

So, January is the month when New Year’s resolutions are made and broken. And with the wind of fresh starts lifting them up, January is also the month when divorce filings skyrocket. In fact, it’s second only to June, when the kids are out of school and living arrangements can be altered before the start of the next school year.

Typically, parties are prompted to reach out to a divorce attorney in January because either they didn’t want to spoil the family celebrations or were hoping that the holidays would help them reconcile.

Either way, our office sees an influx of calls by new prospective clients who are ready to pull the trigger on their divorce in January and usually a couple of weeks after the New Years, once bills and the return to the routine underscore the same marital problems that existed before the holidays.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC

Jan

13

Post-Nuptial Agreements in New Jersey

Filed Under Attorney-Client Relationship, Marriage & Family, Property & Asset Distribution | 3 Comments

A recent NY Times article discussed the increased use of post-nuptial agreements, as reported by attorneys who are members of the American Academy of Matrimonial Lawyers. According to the article, hedge funds and other high-value equity partnerships are encouraging their newly-minted partners to get post-nupts to guard against giving away part ownership in these lucrative positions.

What are “post-nuptial agreements”? Well, unlike pre-nuptial agreements, which deal with parties interested in getting married before they’re actually married, and unlike property settlement agreements, which deal with parties interested in not being married after they’re actually married…post nuptial agreements are intended for a married couple who did not previously enter into a premarital agreement and, despite wanting to be married, would like to plan for the division of property in case they later get divorced.

With that as a backdrop, the New Jersey Appellate Division set forth some very stringent standards for post-nuptial agreements in 1999. In order for a family law attorney to recommend that a client enter into a post-nuptial agreement, there must be four (4) standards that absolutely must be met.

1) There needs to be full disclosure by the parties.

2) Each party must have independent representation by his/her own lawyer.

3) There needs to exist the absence of coercion or duress.

4) The terms must be fair and equitable.

Let’s take these one at a time.

Full Disclosure by the Parties

At the very least this means that the parties should exchange tax returns, a statement of current net worth (listing assets & liabilities and current value) and any other information about the party (not necessarily financial in nature) that would be pertinent to disclose for this situation.

Independent Representation

As it suggests, each party should involve a separate attorney. While it is theoretically possible that a post-nuptial agreement with one pro se party would be upheld, I would not feel confident going forward. In fact, as a practice habit, our firm insists on separate representation.

Absence of Coercion or Duress

I think this one is self-explanatory.

Fair & Equitable Terms

This is the most difficult one to address. The truth of the matter is that fair and equitable is such a subject standards, it’s nearly impossible to discuss. And to make things even more complex, the post-nuptial agreement needs to be fair and equitable when being enforced, as well as when negotiated and executed, which suggests that changing circumstances could render the initial post-nuptial agreement unconscionable in the future.

Parting Words

In one of the most important cases in matrimonial law, the New Jersey Supreme Court remarked that “contract principals have little place in the law of domestic relations.” With that as a backdrop, it’s difficult to have confidence in any privately negotiated agreement, whether a pre-nuptial agreement, post-nuptial agreement or property settlement agreement. At any time, each of them is vulnerable to attack by creative lawyers arguing difference concepts of unfairness.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC