What Is A Mid-marriage Agreement? Are They A Good Idea?
- On October 14, 2015
My wife and I have some pesky marital issues that we want to resolve in an agreement that will be enforceable if ever we divorce. Can we do this in a mid-marriage agreement, and will it be enforceable?
Probably not. A mid-marriage agreement is one that is typically made before separation, but when one spouse is contemplating separation. New Jersey has not yet ruled on mid-marriage agreements, but has observed that an agreement to separate in the future, or which has for its object the actual or possible future separation of the parties, is void as against public policy. Circumstances such as this present an opportunity for one party to use the threat of dissolution to bargain themselves into positions of advantage.
Reconciliation agreements resemble mid-marriage agreements in that they are made during the course of the marriage, but where the marital relationship has deteriorated at least to the brink of an indefinite separation or a suit for divorce. Under such circumstances, a reconciliation agreement may be enforceable, but currently there is no way to be certain that the agreement will be upheld.
Probably not. A mid-marriage agreement is one that is typically made before separation, but when one spouse is contemplating separation. New Jersey has not yet ruled on mid-marriage agreements, but has observed that an agreement to separate in the future, or which has for its object the actual or possible future separation of the parties, is void as against public policy. Circumstances such as this present an opportunity for one party to use the threat of dissolution to bargain themselves into positions of advantage.
Reconciliation agreements resemble mid-marriage agreements in that they are made during the course of the marriage, but where the marital relationship has deteriorated at least to the brink of an indefinite separation or a suit for divorce. Under such circumstances, a reconciliation agreement may be enforceable, but currently there is no way to be certain that the agreement will be upheld.
Before a reconciliation will be enforced, the court must determine that:
- The promise to resume marital relations was made when the marital rift was substantial;
- The circumstances under which the agreement was entered into were fair to the party charged;
- The terms of the agreement must have been conscionable, i.e. fair and equitable, when the agreement was made and when it is sought to be enforced;
- The party seeking enforcement must have acted in good faith; and
The agreement must not be the result of coercion or duress (for example, it is unlikely that an agreement during the marriage would be enforceable if it were the result of one spouse capitulating to the other spouse’s ultimatum solely for the purpose of preventing the destruction of the family or a desire to raise their children in an intact family.)
Every contract in New Jersey must have consideration to be enforceable. Consideration is the promise to do or give something (money) or the forbearance of an act (filing a complaint for divorce). In terms of a reconciliation agreement, the question is whether a spousal promise to resume cohabitation is adequate consideration to bind the other spouse to his or her reciprocal promise. The judiciary has noted that it “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.”In view of the uncertainties with respect to the validity of mid-marriage and reconciliation agreements, proceed with caution. Many attorneys refuse to prepare these agreements because of the uncertainties. Even if you are persuaded to believe that all criteria for an enforceable agreement are present, its validity may not be tested for years, or even decades. The future has a way of changing circumstances that may bear upon the enforceability of such agreements at some unknown distant time.
Every contract in New Jersey must have consideration to be enforceable. Consideration is the promise to do or give something (money) or the forbearance of an act (filing a complaint for divorce). In terms of a reconciliation agreement, the question is whether a spousal promise to resume cohabitation is adequate consideration to bind the other spouse to his or her reciprocal promise. The judiciary has noted that it “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.”In view of the uncertainties with respect to the validity of mid-marriage and reconciliation agreements, proceed with caution. Many attorneys refuse to prepare these agreements because of the uncertainties. Even if you are persuaded to believe that all criteria for an enforceable agreement are present, its validity may not be tested for years, or even decades. The future has a way of changing circumstances that may bear upon the enforceability of such agreements at some unknown distant time.
