You have heard of prenuptial agreements, which are signed before the parties enter into a marriage. You probably know that when there is a divorce, the parties will enter into a marital settlement agreement (assuming they can settle their differences without having to go to trial), along with other agreements, which will resolve the rights and obligations of the parties upon the divorce.
So, if we have agreements that happen before the marriage and agreements that happen after the marriage is over, are there agreements that happen while the parties are married? In fact, there is such a thing, called mid-marriage agreements.
Why Would Parties Need a Mid-Marriage Agreement?
There are a number of reasons why parties may enter into a mid-marriage agreement. Sometimes, the parties intended to enter into a prenuptial agreement, but for whatever reason, did not do so. In other cases, things happen during the marriage that make parties want to protect themselves in the event of a divorce.
Problems with Mid-Marriage Agreements
Mid-marriage agreements are fraught with potential problems that make courts look at them with a lot of skepticism.
Parties to a contract are supposed to be “arms length,” which is to say, if not complete adversaries, at least they negotiate from different sides and different positions. Parties in a marriage are hardly adversarial (or they are not supposed to be). Parties in a marriage should trust each other, while parties to a contract should do their due diligence and not have blind trust for the other party.
There is also the chance of coercion. One party can easily exert influence on the other to sign an agreement, or a party may fear ruining the marriage if the contract is not signed, or if negotiations were to become hostile. The emotion inherent in a marriage can result in coercion.
When are These Agreements Enforceable?
Courts will look to see if there was coercion in entering into the mid-marriage agreement, but additionally, courts will look at whether the agreement is inherently unfair to one side or the other both at the time it was made, and when it is being enforced. Both parties should have their own attorneys, and full disclosure of finances and assets must be made (much like it is with a prenuptial agreement)
Courts will look at what the parties would have gotten if they had divorced without the mid marriage agreement, compared to what they will receive with the mid marriage agreement. If that is unbalanced, courts will lean against enforcing the agreement.
Practically, this can create a problem because nobody knows how long a marriage will last, or what the condition of the parties will be when and if they divorce.
An agreement that says a wife will get the family business may seem fair during the marriage. But if the parties divorce 15 years later, and the business has now gone public and is worth 100x more than what it was worth when the mid-marriage agreement was signed, a court could look at the agreement and find it inherently unfair and thus unenforceable.
Let us help you protect yourself before, during and after a marriage if you need. Contact our New Jersey Divorce attorneys at The Law Office of Agnes Rybar LLC to help you in your divorce.