Are Reconciliation Agreements Enforceable?

Mar 27, 2018 | Written by: Diana N. Fredericks, Esq. | Share

The answer is maybe. 

A reconciliation agreement that is fair, equitable and supported by adequate consideration may be enforceable in certain circumstances.  The consideration must consist of one spouse promising to resume marital relations when the “marital relationship has deteriorated at least to the brink of an indefinite separation or a suit for divorce.”[i]  And the court must make a finding that the “marital rift was substantial” to find that the promise of reconciliation is adequate consideration.[ii]    

Another type of agreement that closely resembles a reconciliation agreement is a mid-marriage agreement.  Such agreements require close scrutiny and careful evaluation to be certain that one party has not used the threat of dissolution of marriage to bargain themselves into a position of advantage.  The agreement must be fair and equitable at the time of enforcement, not just at the time of its creation.  Before the agreement is enforced, the court must determine whether the promise to resume marital relations was made when the marital rift was substantial.[iii] 

In Nicholson, the Court held, “we must proceed with care" when enforcing reconciliation agreements "where the consideration for a spousal promise is said to be the willingness of the other spouse to continue the marriage."[iv]  They also identified six factors for courts to consider when deciding whether to enforce reconciliation agreements:

(1) whether the marital rift was substantial when the promise to reconcile was made;

(2) whether the agreement complied with the statute of frauds;

(3) whether the circumstances under which the agreement was entered into were fair to the party charged;

(4) whether the agreement's terms were conscionable when it was made;

(5) whether the party seeking enforcement acted in good faith; and

(6) whether changed circumstances rendered literal enforcement inequitable.[v]      

In the recent case of Kriss, the Appellate Division voided a reconciliation agreement, finding it was void due to its unconscionable terms.[vi]  In this case, the husband filed for divorce in 1998 but withdrew his complaint and thereafter decided that he and his wife should become “financially separated.”  In 2003, the husband filed a second complaint for divorce.  The wife begged the husband to stay in the marriage, and the husband indicated he would do so if they signed an agreement.

In the Agreement, drafted by the husband’s attorney, the wife was required to relinquish her interest in the family business as a condition for maintaining the marriage.  She was also required to waive her right to alimony if there was a later divorce.  The wife signed the agreement against the advice of her attorney and without fully reading it. 

In 2011, the husband again filed for divorce and sought to enforce the reconciliation agreement. The Court found that the terms of the Agreement were unconscionable, that the wife was intimidated by the husband, and that the wife signed the agreement under duress as she testified she “would have done anything to save the marriage.” 

In total, the husband was ordered to pay the wife’s legal fees of more than $120,000.  The Appellate Division agreed.

Reconciliation and mid-marriage agreements are extremely complex and require not only the advice of good counsel but also assurances that the factors set forth above are thoroughly contemplated and addressed by both parties to the agreement.  The consequences of failing to do so can be severe and quite expensive.

[i] Nicholson v. Nicholson, 199 N.J. Super. 525 531 (App. Div. 1985).

[ii] Id. at 532. 

[iii] Pacelli v. Pacelli, 319 N.J. Super. 185 (App. Div. 1999).

[iv] Ibid.  

[v] Id. at 532.

[vi] Kriss v. Kriss, Appellate Division Docket No. A-3255-15T3, 2018, unpublished