If you are getting married, or are married, you may be thinking about how to protect your money and property. Three types of agreements that may accomplish this can be entered into at different times and circumstances. Whether one is right for you, and if so, which one, depends on your situation.

The Kingston Law Group helps clients address the legal issues that come with relationships, marriages, and parenting. If you have questions or concerns about a family law matter, call us at 609-683-7400.

What Is a Prenuptial Agreement?

A prenuptial agreement, or prenup, is a written contract made before two people marry. It spells out how money and property will be handled if the couple divorces or if a spouse dies. A prenup may protect your pre-marriage assets, such as business ownership, real estate, savings, or investments. It can also help avoid a long and costly legal fight over spousal support and the division of property if the marriage does not last. A prenup must be in writing and signed by both people.

A prenup can cover:

• Who keeps what property if the marriage ends
• Whether one spouse will financially support the other
• How a will or trust should be set up to fund the agreement’s provisions
• Life insurance plans
• Which state’s laws will be used to interpret the agreement

A prenup cannot decide child custody, parenting time, or child support. New Jersey courts always have the final say on matters that affect children.

A prenup can be challenged in court if one person was not given full financial information, was not given a chance to talk to their own lawyer, or did not sign freely and voluntarily.

What Is a Postnuptial Agreement?

A postnuptial agreement, or postnup, is like a prenup but signed after the wedding. It may cover many of the same issues: property rights, financial support, and estate planning. A couple may choose to have a postnup prepared when their financial or professional situation changes after they marry.

New Jersey doesn’t have a specific statute covering postnups, unlike prenups. If a spouse challenges one, a court will review it carefully to ensure it’s valid. It must be signed freely, the parties had enough time to think it over, and they had a chance to talk to their own lawyer before signing it. One thing they’ll consider is whether one spouse pressured the other into signing, for example, by threatening to file for divorce if they don’t.

Postnups are often used when:

• One spouse stops working to raise children at home
• A couple wants to update or replace an old prenup
• One spouse receives a large inheritance or gift

Like a prenup, a postnup cannot decide child custody, parenting time, or child support.

What Is a Divorce Settlement Agreement?

A divorce settlement agreement is created during a divorce. The main benefit of resolving the parties’ differences is avoiding litigation over the issues that divide them.

A divorce settlement agreement can cover:

• Child custody, child support, and parenting time
• How property and debts are divided
• Whether one spouse pays support to the other
• Other financial matters between the spouses

When it comes to dividing a couple’s assets, New Jersey courts use equitable distribution. This means the court divides marital property in what it sees as a fair way, which may not be 50/50.

Only marital property gained during the marriage is included, but what is, or is not, marital property (as opposed to personal property) may be disputed. Gifts and inheritances are usually not divided between spouses because they’re generally considered personal property. Depending on the circumstances, a spouse may receive fewer assets but be awarded support, or receive higher support payments.

If the couple cannot agree on the issues in their divorce themselves, they may proceed to mediation. If that doesn’t work, a judge will decide the issues after a trial. Most divorces in New Jersey are resolved through a settlement agreement, not a trial. A trial outcome is uncertain, and going through one will be costly in terms of money, time, energy, and emotion.

When a couple reaches an agreement, their lawyers draft it up as a formal document. A judge will review it and ensure that both parties understand it and agree to its terms. Once the judge approves it, the agreement becomes part of the final divorce order.

How Are Prenups, Postnups, and Settlement Agreements Similar?

All three agreements share some important features:

• All must be in writing and signed by both parties
• All address money, property, and financial support
• All require both parties to share honest and complete financial information
• None of them can permanently determine child custody, parenting time, or child support. Courts always have the final authority on what is best for children, which may change over time
• All can be challenged in court if one person was misled or pressured into signing
• All are legally binding contracts that are enforceable under New Jersey law when properly made

All these agreements should also be created with the advice and counsel of an experienced family law attorney.

How Are They Different?

The three agreements differ mainly in when they are signed and what they are designed to do:

• Prenup: Signed before marriage. It’s a planning tool that takes effect if the marriage later ends in divorce. It’s governed by New Jersey statute
• Postnup: Signed during marriage. Courts examine it more carefully because New Jersey has no specific statute governing postnups, making the legal standards less settled, and general contract law principles would apply
• Settlement agreement: Signed during a divorce. It resolves or prevents an active legal dispute and must be approved by a judge before it takes effect

A prenup and a postnup are both planning tools. They help couples prepare for a future that may never come. A divorce settlement addresses a situation that is happening.

Another key difference is how each agreement is enforced. A prenup follows clear statutory rules set by New Jersey law, which makes it easier to uphold. A postnup may face greater scrutiny from courts. A divorce settlement agreement must be reviewed and approved by a judge, who confirms it is fair to both parties before it becomes final.

Contact Kingston Law Group

For help with a prenup, postnup, or divorce settlement agreement, call the Kingston Law Group at 609-683-7400 to arrange an initial consultation at a reduced fee. Consultations are often available within a short time.

We will listen to your facts, discuss the law, and advise you of your options. We accept credit cards and offer appointments from 9 a.m. to 5:30 p.m., Monday through Friday. Evening appointments are also available. Contact us today. You will be glad you did!