To Divorce or Not to Divorce: Mid-Marriage Agreements May Answer The Question

One of the more confounding issues facing people on the brink of divorce is the wisdom of pulling back and giving an unhealthy but possibly salvageable marriage a second chance.  The uncertainty may be the concern of one or both partners.  It may related to the catalyst for the divorce decision or concerns about trying again when substantial resources may have already been expended getting ready for the divorce.contract2

Trust issues may have lead to divorce when there are questions of domestic violence or infidelity.  If the divorce process has commenced, statements made by either side may have further exacerbated the sense of trust and commonality shared by the parties.  Lurking behind the frailty of the relationship is the concern for the economic consequences of the divorce.  These economic concerns often stand in the way of meaningful reconciliation. How then can people who want to give it another chance but who have concerns about their future or do not want the work already expended on a divorce in progress make it work?

A creative answer is the Mid-Marriage or Post-Nuptial Agreement.  We have previously written about the Prenuptial Agreement Act which applies to agreements between parties about to marry.  The Prenuptial Agreement Act does not apply to an agreement reached between people already married.  The case law surrounding the appropriateness and enforceability of post-marital  agreements are sparse, three cases being the hub and spokes of  this area of the law.

The first of the cases to discuss the viability of a post-nuptial agreement is the trial level decision in Barbour v Barbour, 51 N.J. Eq. 267 (Ch. Div 1892), where the trial court enforced a Post-Nuptial Agreement between married people who had separate and entered into an economic agreement as part of the reconciliation process.  That decision of the trial court was overtured by the Appellate Division in Barbour v. Barbour, 51 N. J. Eq. 267 ( E& A 1893), not because such an agreement is unenforceable per se but because the particular agreement in that case had not been reduced to writing.   Importantly, neither court found that such a post-nuptial agreement violated the public policy of the State or that such an agreement would infringe State’s interest in the continuity of marriage.  Barbour clearly established that this State’s common law supports the ability of married people to contract during their marriage regarding their marital rights and bligations in divorce.

The more modern case of Nicholson v Nicholson, 199 N. J. Super. 525 ( App Div 1985), looked at the Barbour decision after the passage of years and then current divorce law and found that Barbour was still good law.  In affirming the ability of married people to contract regarding marital rights, the Court set forth definitive rules to be considered in determining if a Mid-Marriage Agreement should be enforced in equity:

1) that the promise to reconcile was made when there was a current marital rift;

2) That to the extent necessary the agreement conform with the Statute Of Frauds;

3) The terms of the agreement must be conscionable when made;

4) The party seeking enforcement must have acted in good faith.

Accordingly, Nicholson stands for the proposition that an uncontrived marital rift would be sufficient justification for a well thought out and fair mid-marriage agreement, the consideration for which would be the reconciliation or good faith attempted reconciliation of the parties.

The third and most recent case to address the nature and enforceability of post-nuptial agreements is Pacelli v. Pacelli, 319 N.J. Super.  185 (App Div 1999).  Looking to Nicholson as the polestar of it’s determination, the Appellate Division in Pacelli found that parties could enter into a Mid-Marriage Agreement provided there was a true marital rift and the agreement was fair and equitable both when made and when enforcement is sought.

A Mid-Marriage Agreement may be the right answer to your question as to what is needed for you to be willing to attempt a reconciliation.  The Law Office of James P. Yudes is always ready to help you find a creative and satisfactory solution to your marital problems.