A Prenuptial agreement (also known as a premarital agreement) is a written agreement which couples can enter into, prior to marriage, in order to define each party’s rights and obligations in the event of divorce. Said agreement becomes effective upon their marriage and must have a statement of assets attached to it. Premarital agreements are governed by the Uniform Premarital Agreement Act N.J.S.A.37:2-31, et seq.
Prenuptial agreements are entered into by prospective husbands and wives before they get married. If a prenuptial agreement is properly drafted, it can save the parties significant emotional and financial expense and duress if they get divorced.
Issues That Can Be Addressed in a Prenuptial Agreement
The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
The right to buy, sell, use transfer, exchange, abandon, lease consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy;
The choice of law governing the construction of the agreement; and
Any other matter, including the parties’ personal rights and obligations, not in violation of public policy.
Issues That Cannot Be Addressed in a Prenuptial Agreement
A prenuptial agreement cannot limit child support or any other types of financial support for a child. This includes costs to maintain health insurance or life insurance. Moreover, a premarital agreement cannot stipulate which party should have custody of any child born of the marriage.
Child support provisions are governed by different rules that take into account a child’s needs and best interests and the state’s concern as to the welfare of children. Waives of child support are invalid. Agreements as to child custody and visitation will not be upheld, as the welfare of the child born after marriage will override.
What Determines the Enforceability of a New Jersey Prenuptial Agreement?
If one party to a New Jersey prenuptial agreement files an action challenging the enforceability of the agreement, the court will first require that the non-challenging party prove that:
1. The challenging party entered into the agreement voluntarily;
2. The challenging party had the opportunity to have the agreement reviewed by an attorney of his/her choice; and
3. The non-challenging party disclosed all of his/her assets, liabilities and income.If the non-challenging party can prove all of those things, the only way the court will refuse to enforce the New Jersey prenuptial agreement is if the challenging party can prove that it is now “unconscionable’ to enforce it. A prenuptial agreement will be found to be unconscionable if:The challenging party is rendered without a means of reasonable support;
4. The challenging party becomes a public charge; or
5. The challenging party’s standard of living is far below that enjoyed before the marriage;
What Are the Essential Requirements That Must be satisfied in Order for
A Prenuptial Agreement to be upheld?
There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be annexed to the agreement that sets forth the parties’ earnings, property, and financial obligations. A CIS should also be attached to the agreement.
1. Both parties should be represented by attorneys, in all probability,
a prenuptial agreement will not be enforceable if the other party did
not consult with an attorney, or did not waive the right to do so in writing.
2. The agreement must be unconscionable. An unconscionable premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it. N.J.S.A. 37-2-32 defines a premarital agreement as unconscionable if certain circumstances should arise. These situations are as follows: when a spouse becomes a public charge; when a spouse is provided a standard of living far below that which was enjoyed before the marriage.
When Should a Prenuptial Agreement be Signed?
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. It simply does not make sense to try to put together a pre-nuptial agreement on short notice and hope that it will survive a challenge.
While six to eight weeks would be optimal, this does not mean to suggest than an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it would not be unreasonable to state in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time and feel that the time frame did not in any way affect their ability to freely and voluntarily enter into the agreement or cause them to do so under any coercion, duress, or undue pressure.
Can a Prenuptial Agreement be Signed After the Wedding?
A prenuptial agreement can be made after the wedding whenever differences arise between the parties regarding future financial issues. This type of agreement is often called a post-nuptial agreement. A post-nuptial agreement must be based upon some consideration other than the marriage itself. Sometimes a post-nuptial agreement is made as part of a reconciliation of the parties or following some other dispute. A post-nuptial agreement has been held to be just as enforceable as a prenuptial agreement. To protect your interests, contact the Morris County family lawyers at O’Sullivan Law Group, LLC at (973) 998-7999 to schedule a free initial consultation.