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Marriage is not just a personal agreement between two people to love and care for each other’s needs—it is a legal agreement that creates an enforceable bond between two spouses. The end of a marriage often represents an end to a couple’s legal obligations to support each other outside of mandated alimony and child support payments.

An important question in all divorce proceedings is how to divide the assets that each party holds. While family courts are empowered to divide the assets and debts of the marriage in an equitable manner, evenly splitting assets down the middle may result in an uneven distribution.

You can outline your needs in a marital agreement either prior to marriage, after the wedding, and even during the divorce process. When determining how to split assets, the court often accepts marital agreements as evidence of what both parties want.  With our assistance, you can craft a martial agreement that outlines the expectations for your marriage, shortens potential divorce proceedings, and/or protects your assets.


Asset Division in New Jersey Family Courts


New Jersey family courts have an obligation to create an equitable distribution of property, debt, and funds following the end of a marriage, as outlined in New Jersey Revised Statutes §2A:34-23.1.  Courts have great latitude in making these decisions. In lieu of splitting property 50-50, though, and in an effort to create fair terms of divorce, the court generally considers a number of factors relating to both involved spouses, including:

  • Marriage length
  • Standard of living established during the marriage
  • Outstanding debts of both parties
  • Contribution of each party to the marriage
  • Behavior leading to the divorce
  • Earnings of both parties
  • Debts incurred by either spouse
  • Ability to independently support one’s self
  • Property accumulated during the marriage

The court’s division of assets can lead to a distribution that negatively impacts one or both parties. A marital agreement can clearly define a couple’s intentions and desires. These agreements can outline which assets each party would retain, the assignment of any debt, and—to a limited extent—support or custody arrangements in the event of a divorce. Without a martial agreement, courts are forced to determine equitable distribution based on factors alone, rather than the parties’ agreement.  Our team can help explain the purpose of marital agreements, provisions to potentially include, and how marriage contracts interact with family court laws.


Common Marital Agreements


The most common type of marital agreement is a prenuptial agreement, which is a contract entered by soon-to-be-married individuals that addresses how assets would be distributed if the marriage ends in divorce. A prenuptial agreement typically has no effect if the couple never divorces.


Why Might a Prenup Be Necessary?


While there is no obligation for people to enter into a prenuptial agreement, crafting one may prove advantageous to both parties. Without one, family courts will make an equitable distribution of all assets owned during a divorce, whether they were accumulated during a marriage or not.   By discussing the future and planning ahead for it, you and your future spouse work together to identify the needs for your marriage and to protect the assets that you each bring to the partnership.

Upon divorce, a court may split all debt accumulated during the marriage. If one party enters the marriage debt-free and the other carries debt, the financial burden becomes the responsibility of both parties upon marriage. The court can split the burden evenly if the marriage dissolves.

A prenuptial agreement can address these concerns. The court typically assumes that the signatories of a prenup believe that the provisions in the agreement are fair, and the court may be hesitant to void an agreement without due cause.

Crafting an agreement prior to marriage often requires discussion and input from both parties. In working with our team, you and your future spouse can each examine your needs, plan for the future, and form an agreement that protects your assets.

A postnuptial agreement is almost identical to a prenuptial agreement, except for the fact that it is created after a couple is married. Even if you and your spouse choose not to create a prenuptial agreement, a postnuptial agreement can be beneficial. Whether it is done before or during your marriage, detailing in advance how a divorce might proceed could help you avoid potential conflicts later in life.

Many people think they only have the option to create a contract to secure their rights in a divorce before they are married. While agreements made prior to marriage are common, it is just as viable for two spouses to enter into an agreement at any time during their marriage.

Known as postnuptial agreements, you and your spouse may create contracts after your marriage.

As a knowledgeable attorney can explain, postnuptial agreements and prenuptial agreements function in the same general way. In both types of documents, spouses determine what to do if a marriage ends and a divorce becomes final.

While both agreements tend to outline similar key terms for a potential divorce, they are created at different times. As the name suggests, postnuptial agreements are made after two individuals are already married. It should be noted that with both types of contracts, the agreement only has a binding effect if the marriage comes to an end.

You may also choose to file a marital settlement agreement at the end of your marriage. If both you and your spouse agree to the distribution of assets, assumption of debt, and custody arrangements, a divorce may proceed much quicker.

For all marital agreements, though, consent of both parties is key. If a party argues they entered into a martial settlement agreement under duress, a court may reexamine the language in the agreement to determine its validity.


Give Our Team A Call Today


You may not want to take your chances with the whims of family court while going through a divorce. While the court is obligated to make an equitable distribution of assets at the end of a marriage, your lack of action could lead to an unfavorable split.

If you are married, are planning to get married soon, or are beginning the divorce process, it may be wise to discuss planning for your future with an experienced attorney. Our team of lawyers can work with you through the entire process of crafting a fair and enforceable marital agreement.

Getting professional legal help and making an informed decision about protecting yourself and your assets can benefit you greatly. Give us a call today to discuss marital agreements in further detail.