Few areas of family law present as much complexity as the enforcement of agreements between spouses. Whether negotiated before marriage, during marriage, or at the brink of divorce, these agreements sit at the intersection of contract law, equitable principles, and public policy. Each type, prenuptial, postnuptial (mid-marriage or reconciliation), or marital settlement agreements carries its own enforceability standard.
New Jersey Courts have long recognized the important role these agreements play, but they have also cautioned that the unique context in which they are made requires heightened judicial scrutiny. This is especially true in the mid-marriage context, where the distinction between a reconciliation agreement (supported by the valid consideration of resuming or preserving a marriage already in jeopardy) and a mid-marriage agreement (often born of ultimatums in an otherwise intact marriage) can determine enforceability.
This article explores the differences among these agreements, the evolving standards of enforceability, and the judicial groundwork that guides New Jersey Courts. It also examines how practitioners can navigate the delicate balance between freedom of contract and protection from overreaching in this distinct area of matrimonial law.
I. Prenuptial Agreements: Autonomy Before Commitment
A. Statutory Framework
Prenuptial agreements are governed by the Uniform Premarital and Pre-Civil Union Agreement Act, N.J.S.A. 37:2-31 to -41. The Act authorizes parties to contract with respect to property rights, spousal support, estate rights, and other financial matters. To be enforceable, the agreement must be in writing, signed by both parties, and accompanied by a statement of assets.
B. Historical Evolution
Prior to 1988, New Jersey Courts were reluctant to enforce prenups addressing alimony or support, viewing them as contrary to public policy. The Act, and its subsequent amendment in 2013, reflected a shift toward contractual autonomy. The 2013 amendment significantly altered the enforceability standard by mandating that Courts assess unconscionability at the time of execution, rather than at enforcement. This effectively eliminated the possibility of challenging a prenup simply because circumstances had changed over the course of a marriage.
C. Judicial Interpretation
Cases such as Marschall v. Marschall, D’Onofrio v. D’Onofrio and Steele v. Steele illustrate that Courts will uphold prenuptial agreements absent fraud, duress, or incomplete disclosure. Independent legal counsel, full financial disclosure, and voluntariness are critical. Where these safeguards are absent, Courts have not hesitated to strike down provisions.
Policy Consideration: Prenups are entered when parties still enjoy freedom to walk away. Courts assume a relatively level bargaining field, provided disclosure and voluntariness exist.
II. Postnuptial Agreements: Mid-Marriage vs. Reconciliation
A. A Distinct Legal Category
Unlike prenuptial or marital settlement agreements, postnuptial agreements are not governed by statute. Their enforceability rests on common law principles and the judiciary’s scrutiny of the specific facts of the case before it. Within this category, Courts distinguish between mid-marriage agreements and reconciliation agreements, a line that often proves decisive.
B. Case Law
Nicholson v. Nicholson, 199 N.J. Super. 525 (App. Div. 1985)
In Nicholson, the husband filed for divorce. The parties later executed an agreement in which the wife dismissed her complaint and resumed the marriage in exchange for financial concessions. The Appellate Division upheld the agreement based on the reasoning that the reconciliation and dismissal of the complaint provided valid consideration. The agreement was consistent with public policy favoring preservation of marriage. Reconciliation agreements are enforceable if entered voluntarily and fairly. To be set aside, the Courts must find that an agreement was unconscionable at the time of signing. Signing the agreement to resume the marriage is not on its face unconscionable.
Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999)
The husband told his wife that unless she signed an agreement waiving property rights, he would file for divorce. She signed to preserve the marriage. Here, the Court invalidated the agreement and distinguished reconciliation from mid-marriage agreements. In Pacelli, no divorce had been filed or separation finalized. The wife’s “choice” to sign the agreement presented was coerced, not voluntary. Fairness must exist both at execution and at enforcement, and thus mid-marriage agreements are presumptively suspect. Threats to leave or divorce do not constitute valid consideration.
Steele v. Steele, 467 N.J. Super. 336 (App. Div. 2021)
The parties entered into a mid-marriage agreement reallocating assets. At divorce, the wife contested the enforceability of the agreement. The Appellate Division reaffirmed Pacelli, and invalidated the agreement. The Court opined that absent a pending litigation or a genuine reconciliation, the agreement reflected coercion. The heightened “dual fairness” standard, fair at both execution and enforcement, was not satisfied. Steele confirms the enduring skepticism of mid-marriage agreements.
C. Policy Tension
New Jersey Courts recognize the public policy favoring reconciliation and preservation of marriage. At the same time, they are wary of coercion. Thus:
III. Marital Settlement Agreements: Judicial Deference at Dissolution
A. Policy Foundation
Marital settlement agreements, by contrast, enjoy the strongest presumption of validity. Courts encourage settlements in family litigation as a matter of public policy, valuing finality and stability.
B. Konzelman v. Konzelman, 158 N.J. 185 (1999)
The issue here was whether the anti-cohabitation clause which affected alimony rendered the parties’ MSA unenforceable. The Court upheld the agreement. Settlements are enforceable unless obtained by fraud, duress, or unconscionability. MSAs are generally entered after discovery, with counsel, and under judicial supervision, all of which are conditions fostering fairness. In turn, MSAs receive strong judicial deference.
C. J.B. v. W.B., 215 N.J. 305 (2013)
The relevant issue here was whether the Court had the authority to establish a special needs trust when the parties deferred issues regarding support of their son. The Court reaffirmed enforceability of negotiated settlements and highlighted the general principle that Courts are to enforce fair and equitable agreements that fulfill the parties’ intent. While child-related provisions remain subject to best-interest review, financial terms between competent adults are presumed valid.
IV. Comparative Analysis
A. Timing and Context
B. Standards of Review
V. Practical Guidance for Practitioners
When advising clients on spousal agreements, practitioners must tailor their approach to the type of contract at issue. Prenuptial agreements demand the utmost attention to the process, including the use of independent counsel, complete financial disclosure, and contemporaneous asset schedules to ensure enforceability. Reconciliation agreements, in turn, should be carefully documented to reflect the pendency of separation or litigation, and confirmed as voluntary. Mid-marriage agreements require the greatest caution, as Courts remain deeply skeptical of their validity; enforcement is unlikely unless extraordinary safeguards of fairness are present both at execution and at dissolution. Finally, marital settlement agreements should be drafted with precision and clarity, balancing fairness between the parties.
Conclusion
The enforceability of agreements between spouses depends not only on contract principles, but also on timing, context, and public policy. Prenuptial agreements are backed by statute and contractual autonomy. Reconciliation agreements are generally enforceable, supported by the valid consideration of marital preservation. Mid-marriage agreements, however, remain shadowed by coercion concerns and are subjected to the most rigorous scrutiny. Marital settlement agreements enjoy the strongest presumption of validity, reflecting the judiciary’s preference for resolution at dissolution.
For practitioners, the nuanced line between reconciliation and mid-marriage agreements is especially important. Whether an agreement saves a marriage or merely prolongs it can determine whether it stands the test of litigation.
