Speaker 1: of men's and fathers' rights in divorce, custody, and family law issues. My office is in Nutley, Montclair, New Jersey. Today is September 18th, 2019. As I said, this is New Jersey, so if you're watching this video at any other day or time or in any other state, you have to check your state laws to make sure that what I said still applies or even if it applied in the first place. Today's video is my weekly how-to series where I try to take a certain topic that's important to clients or that comes up often and give you a little more information that I generally do on my daily tip. So today's topic is how to draft an enforceable post-nuptial agreement. It's important to realize that I'm saying post-nuptial, not pre-nuptial, which is what most people think of. This topic is not about a pre-nuptial agreement. That's a different video. I did do one, actually did a couple, I think, on my YouTube page and maybe one on my website, mcklindwongroup.com, on pre-nuptial agreements, but today's post-nuptial. So just to be clear, a post-nuptial agreement is an agreement that you draft after you are married. So it's similar to a pre-nupt in its terms, but its timing is obviously very different. A post-nuptial agreement is often called a mid-marriage agreement. Sometimes it's called a reconciliation agreement. More often, it's called a post-nuptial agreement, and I think that's the best thing to call it so that it's clear. Unless you're truly doing it for hopes of reconciliation, then you can use really either term. The purpose of a reconciliation or post-nuptial agreement is just that. You're trying to do two things. One is usually you contemplate a reconciling, but also you recognize that there could be a divorce in the future, and you want to eliminate most of the litigation that may result if the reconciliation doesn't work. And by having this agreement in place, it usually facilitates the reconciliation because it takes the pressure off of worrying whether or not we're gonna get divorced or not and what's gonna happen. So you can put the financial and maybe custody issues aside and work on the reconciliation. Things to know about a post-nuptial agreement is what the law says about them. And currently in New Jersey, the status of the law suggests that a post-nuptial agreement is very coercive, meaning it's viewed as sign this or we're getting divorced. And it's quite contrary to the law about pre-nuptial agreements. Pre-nuptial agreements are viewed as not as coercive and valid unless there's a showing of some fraud or underlying defect in the agreement. It's almost as if the law will prefer a pre-nuptial agreement as opposed to a post-nuptial. Now, I personally don't agree with that, and I've never agreed with that. I think a pre-nuptial agreement is a lot less, or a lot more coercive than a post-nuptial. Because in my opinion, I think people are more likely to call off a wedding than they are to get divorced. While the law says it's a sign this or get divorced, I think people are more hesitant to get divorced. There's often children involved. Usually there's assets that may have been acquired, alimony claims that may exist. And stepping into that form is very challenging for most people. Whereas a pre-nuptial agreement, while there can be children involved, there's not always, and even if there were, it's not gonna really make a difference because pre-nups don't really govern child-related issues. You're less likely to have assets in common or debts. You're less likely to have an alimony claim of any kind unless there's been some kind of cohabitation. So I personally think a pre-nuptial agreement is a lot more coercive than a post-nuptial agreement. But what's important to take from this video is that the courts don't agree with me. So when push comes to shove, go with what the courts think. So what you wanna do knowing this to draft an enforceable post-nuptial agreement is first to incorporate language like this into your agreement. Most agreements will have several different pieces to it, and most will have in the very beginning what's called wherefore clauses or whereas clauses. And they're general introductory paragraphs that kind of set forth the background or the history or the intention of the agreements. So inside of that paragraph, or at least somewhere in your document, whether you call it a whereas clause or not, you wanna indicate that you're made aware of the current status of the law and that you don't agree with it, and that you think that you're, not that you think, that you know you're doing this freely and voluntarily, that it's actually a very positive agreement, that it's something you fully understand, had a chance to have explained to you, that you met with a lawyer, everything that suggests that you're not being coerced. You could even suggest that you're not even contemplating a divorce, but I wouldn't recommend it because that could be part of the underlying assumptions to the other party in the agreement. But it's something to consider. So first you have to acknowledge the law. Second, you have to acknowledge what your intentions are inside of that agreement. If you clearly state that you're looking to reconcile or not, you're looking to avoid the cost and difficulty of a divorce, you're looking to separate your finances because you think your assets are gonna require a greater appreciation more quickly than the other person, put that in. Put in as much as you can about what your understanding at the moment is and what you think the future will bring so that if and when that happens, or even if it doesn't happen, the court will still know that you looked at it and contemplated all of this before signing the agreement. That will also lend to the court finding it's not coercive. Lastly, I would recommend, and I recommend this also in a prenup in my videos for that, you wanna indicate how circumstances are likely to change in the future and whether or not they do or don't. You wanna indicate that your agreement is not affected by that, that you've contemplated both what you think will happen as well as what you think might not happen. Or even if you thought it was gonna happen and it didn't happen, you've contemplated that also. Short of that is you wanna put in everything, not everything, you wanna put as much as you can about what you anticipate happening in the future and why you're doing it so that if the court does have reason to look at it in an unfortunate divorce later, they will know that it was not coercive, that you fully understood the law, your rights, what the agreement says, and that everything you anticipated was placed into the agreement and that you understand it may be very different when time comes for the divorce. If you follow all that, the courts will likely enforce the post-adoption agreement because as I said, they find it coercive. That doesn't mean that you can't use one and it can't be enforceable. That just means the law is against you. So you really need to plan carefully on both sides of the agreement, whether you're a spouse drafting it or a spouse receiving it, you need to contemplate on both sides all these issues to make sure the agreement is fair. And if you truly are doing it because you wanna reconcile, having a fair agreement will help you guide your future decisions inside of that relationship because you've already set forth the financial terms that you're gonna live by now, as well as if you get divorced. And it will eliminate at least a lot of those issues for you. So hope this information helps you. If it did, please give it a like and share it so that other people get to see it. If you have any questions, you can put a comment on whatever platform you're watching. I will always respond to my questions. You can also message me if there's anything you need to ask or you'd like to see in the future. And you can subscribe so that you'll get noticed when I go online, if you wanna see more videos in the future. So with that, I'm gonna sign off. Thank you for watching and hopefully be back soon.