Mr. Medina gives a great description of what post- nuptial agreements really are:
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.
Against this back drop, he provides the minimum requirements for a post-nuptial agreement to be upheld in New Jersey.
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.
In New York, the requirements are quite similar, the agreement must be properly signed and acknowledged and entered into without fraud, coercion or duress. The agreement cannot be unconscionable.
One way of assuring that a martial agreement will be upheld, is to have full disclosure of assets, liabilities and income. In addition, the parties should each be independently represented by counsel.
While all agreements are subject to attack and there is no certainty that any agreement will be upheld, New York courts encourage parties in a matrimonial setting, to put their affairs in order by written agreement. The terms of a valid martial agreement will be enforced and there is a heavy burden on the party attacking the agreement to show why it should be set aside.