Can you do a prenuptial agreement after marriage?

Prenuptial agreements that outline each person’s economic rights and responsibilities made before marriage are enforceable if they are fair and equitable, and if they comply with the Uniform Pre-Marital Agreement Act. Similarly, marital settlement agreements made at the end of a marriage to establish each person’s economic rights and obligations after divorce are enforceable if they are fair and equitable.


Prenup after marriage: alimony and the distribution of assets made in the middle of a marriage


Agreements made during the marriage are difficult to enforce and must be carefully prepared. The New Jersey Appellate court addressed this issue directly in Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999). The court in Pacelli held that a mid-marriage agreement (prenup agreement after marriage) was unenforceable because there was no evidence the parties’ marriage had genuinely deteriorated, because the husband’s primary motive in getting his wife to sign the agreement was financial, and because the terms of the agreement were not fair. The agreement in Pacelli had been signed eight years before the divorce. In rejecting the agreement, the court noted that mid-marriage contracts “must be closely scrutinized and carefully evaluated to ensure that their terms are fair and just, both when such agreements are executed and when they are enforced.” 


The court drew a distinction between in Pacelli distinguished between prenuptial agreements, divorce agreements, and mid-marriage agreements. In the prenuptial agreement context, the dependent spouse had not yet entered into a legal relationship with the other party. In divorce agreements, because the marriage has already died, each party looks to his or her economic rights and the relationship becomes adversarial. However, in a mid-marriage context, the status of the marriage is uncertain, and the position of the parties may differ. One person may feel compelled to sign the prenuptial agreement after marriage to save the marriage and make an agreement that may not be in their best interest if the marriage fails.


In the case of the Pacelli’s, the prenup after marriage was signed before the marriage was genuinely over, and when one of the parties wanted the marriage to survive. Mr. Pacelli informed his wife that he would divorce her unless she agreed to certain terms regarding their economic relationship. To emphasize his demand, the husband moved out of the marital bedroom and into an apartment above their garage. Scrutinizing these facts, the court found that Mr. Pacelli’s demands were “inherently coercive.”


In Nicholson v. Nicholson, 199 N.J. Super. 525 (App. Div. 1985), the court said: “We must proceed with care, however, where the consideration for a spousal promise is said to be the willingness of the other spouse to continue the marriage. That willingness must spring from more than the underlying marital commitment that keeps marriages going despite a spouse’s faults. Courts will not enforce every spousal promise that was made to relieve a marital tension.”


Where, however, the marital relationship has deteriorated at least to the brink of an indefinite separation or a suit for divorce, a spousal promise that induces a reconciliation will be enforced if it is fair and equitable.


Can you get a prenuptial agreement after marriage? Can you Sign a prenuptial agreement after marriage? 

There are several factors to consider when evaluating whether a mid-marriage agreement will be enforceable:


  1.     The parties’ promise to reconcile must occur when the marital rift is substantial;
  2.     The circumstances under which the agreement is signed must be fair to the parties at the time it is signed and at the time it is being enforced;
  3.     The agreement must be in writing;
  4.     The person seeking enforcement must be acting in good faith; and
  5.     Circumstances must not have changed since the agreement was entered that would make enforcement inequitable.


We advise that you tread carefully when entering into a prenup after marriage, so you have the best chance of having it be enforceable down the road. If you are considering a prenuptial agreement after marriage, please give us a call to schedule your consultation today.

Rosanne S. DeTorres
Ms. DeTorres is the managing partner and co-founder of DeTorres & DeGeorge Family Law. She is also only one of 150 attorneys in the State of NJ that is certified by the NJ Supreme Court as a Matrimonial Law Attorney. Ms. DeTorres graduated...
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