Imagine that it’s been a rough few months (or longer!) for you and your spouse. You’ve stopped sharing the marital bedroom. One of you filed a Complaint for Divorce. The two of you begin discussing issues such as alimony, as well as dividing assets and debts. Now imagine a few more months have passed, and you and your spouse have talked things through and decided that both of you wish to continue in the marriage. What now? Perhaps you want to set some boundaries with respect to alimony and dividing assets and debts while you and your spouse start with a proverbial clean slate.
A Reconciliation Agreement is an excellent way for couples who have fought back from the brink of divorce to lay out all their economic plans in the event that they get divorced in the future. Although Courts have NOT enforced “mid-marriage agreements” (agreements to separate at a point certain, or the prepare for imminent divorce); Courts have differentiated reconciliation agreements and found them to be enforceable because they are in accord with public policy of preserving marriages.
The cornerstone New Jersey case in this regard is Pacelli v. Pacelli 319 N.J.Super. 185 (App. Div. 1999). In Pacelli, there was no divorce action pending and no warning prior to the husband informing the wife that he would immediately divorce her unless she agreed to certain economic terms and conditions relative to a future divorce. Both parties retained attorneys. The husband’s attorney sent the wife’s attorney an agreement which he said was non-negotiable. The wife’s attorney advised her NOT to sign the agreement, and that she would be entitled to a much greater amount of alimony and share of the marital assets than what was contained in the agreement. Against her attorney’s advice, the wife signed the agreement anyway, and vehemently opined that she wanted to preserve her marriage and that she did not want her children to grow up in a broken family.
Eight years later, the wife filed for divorce. The husband attempted to enforce the agreement, but the trial court refused. In affirming the trial court’s decision, the Appellate Division remarked how the marriage had not lost all of its vitality when the agreement was executed, and it also emphasized its disdain at the “inherently coercive” nature of the “ultimatum” that the husband foisted upon the wife.
The Pacelli decision outlined seven considerations in evaluating whether a Reconciliation Agreement is enforceable:
- If the promise to resume marital relations was made when the marital rift was substantial.
- 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.
(citing Nicholson v. Nicholson, 199 N.J. Super. 525, 532 (App. Div. 1985))
The list of factors and the finer points of alimony and equitable distribution can be daunting; however, the attorneys at Argentino Family Law & Child Advocacy can (and have) handled Reconciliation Agreements (as well as countless other family law issues). Give us a call so that we can schedule a case assessment and give you more details about how a Reconciliation Agreement may work for you.