2

Hypothetical question:

Mary and Sam have been married for 20 years. During the marriage both persons commit adultery and reconcile at different stages of the marriage.

Let's also say there is still one minor child in the marriage.

Let's also say that Mary has been abused both mentally and physically at times during the marriage.

Sam has always controlled all the money and Mary isn't even on any bank accounts.

Sam and Mary get into a fight one day and Sam orders Mary to leave the house. So Mary leaves the house and takes the child with her. The two stay off and on with friends for a month or two. But Mary controls no money.

Mary calls Sam one day and asks Sam to please pay for her an apartment; deposit and a month of rent for Mary and the child.

Sam says he would do it as long as Mary signs a paper stating that is all he owes her and all is even at that point.

If a divorce has NOT yet been filed;

Would such a contract be binding? After 20 some years of marriage, can all of the alimony and child support which might be owed just be written off by Mary simply signing a contract that states this so that she can have a place of her own to stay for a while?

I have done a little research but I'm not a lawyer, and I don't see how one could sign away child support at all, but I could see how alimony might be signed away, but would it be "reasonable" in the courts eyes being that Mary feels duress because she's basically homeless and has been staying with friends for a few months.

I think after 15 to 20 years of marriage there would be a lot of alimony owed and a few thousand dollars for an apartment can't make up for it.

5

It depends.

An agreement of the type you describe is called a post-nuptial agreement or marital agreement.

These agreements are not prohibited, but are subject to heightened scrutiny. In determining if it is valid, courts consider financial disclosure, an opportunity to consult a lawyer, and a voluntary non-coerced agreement in writing, as well as a requirement that it not be unconscionable when signed or when enforced.

Strictly speaking, while alimony can be eliminated in this manner and divorce attorneys' fees and property settlements can be managed in this manner, child support cannot be eliminated in this manner, although some agreement as to what constitutes payment in kind of a child support obligation that is currently existing can be reached. Modification of child support requires court approval since the child's rights are implicated and the child is not competent to agree.

In the circumstances you describe, I do not think that any of the agreement would be upheld as it would likely be found to be flawed both substantively and in the process by which it was agreed.

This is particularly true because New Jersey is quite hostile to post-nuptial agreements relative to most states and generally only permits them when there is evidence that the marriage was nearly moribund or the agreement was entered into in connection with a reconciliation. In general, some of the considerations that apply in New Jersey are that:

If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds. The court may have to resolve disputes over the terms of the agreement. The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged. The terms of the agreement must have been conscionable when the agreement was made. The party seeking enforcement must have acted in good faith. Changed circumstances must not have rendered literal enforcement inequitable.

This approach remains good law in New Jersey and has been enforced in a manner that is quite skeptical of these agreements. See, e.g., Kriss v. Kriss, A-3255-15T3, 2018 WL 1145753 (N.J. Super. App. Div. Mar. 5, 2018). Many others states are more inclined to uphold such agreements.

-1

No

You cannot contract outside the law. All OECD jurisdictions including New Jersey has specific laws that govern divorce and the financial arrangements that flow from them. While most give parties some discretion in the settlement the discretion is subject to the approval of the court - the court will not approve an agreement that isn't in the ballpark of what the parties would get under the law.

  • Even if the divorce has not been filed yet? – mark b Mar 15 '18 at 2:16
  • 2
    At least some of this agreement would probably have a a 50-50 chance of being upheld in Colorado prior to some law reforms of a couple of years ago, although New Jersey is more strict. – ohwilleke Mar 15 '18 at 2:51

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