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Introduction to prenuptial agreements in New Jersey

Once viewed with suspicion, the modern prenuptial agreement is seen as financially smart for many.

Well before the wedding date, a future spouse should consider whether a prenuptial agreement would make sense for the couple. A prenuptial agreement is a legal contract signed by prospective spouses in contemplation of future marriage, effective upon marriage.

Why use a premarital agreement?

Most commonly, people are using prenups to predetermine issues of property and money - including debt - in case of later divorce, separation or death.

People are marrying later in life with more property about which they may have ideas for what should happen to it in case of separation or divorce. New Jerseyans contemplating second or subsequent marriages may not want to repeat ramifications of earlier divorces and may already have children to consider.

New Jersey prenuptial agreements

New Jersey adopted the Uniform Premarital and Pre-Civil Union Agreement Act effective Nov. 3, 1988. Prenuptial agreements, also called premarital or antenuptial agreements, signed before that date are subject to the law in force when signed and those signed on or after that date forward are subject to the uniform law.

The premarital agreement must be in writing with an attached "statement of assets." This attachment makes sense because historically a problem associated with prenups was one spouse keeping assets secret, so the other did not understand what they were giving up when signing.

New Jersey law says broadly that the parties may use a premarital agreement to contract about anything that does not violate public policy, including their "personal rights and obligations." The statute also lists seven specific subjects that may be covered:

  • Rights and obligations of each in property owned by either or jointly
  • Rights to "manage and control" property, including selling, buying, disposing of, encumbering, abandoning, using and more
  • Disposing of property at separation, divorce, dissolution of a civil union, death or other event
  • Modifying or eliminating alimony
  • Making a will or trust or another document to carry out the prenup
  • Rights in the payout at death from life insurance
  • Choice of law governing agreement (such as the law of a particular state)

A prenup may not negatively affect a child's right to child support.

After marriage, the parties can modify or revoke a premarital agreement in writing signed by both.

Challenging the validity of a prenup

A spouse can challenge the enforceability of the agreement, but they have the burden to show by clear, convincing evidence either that they signed the prenup "involuntarily" or that it was unconscionable when signed because at least one of four conditions were true before signing:

  • That spouse did not get full disclosure of the other's income, assets and debts
  • That spouse did not waive in writing the right to that full disclosure
  • That spouse did not have adequate knowledge and could not reasonably have had knowledge of the property or debts of the other
  • That spouse did not consult with their own lawyer and did not waive in writing the right to do so

If the allegation of unenforceability is based on unconscionability, these bases are the only ones allowed and the court determines unconscionability as a matter of law.

The attorneys at Heymann & Fletcher in Randolph, New Jersey, advise clients about premarital agreements, including drafting, reviewing, challenging and defending them throughout northern New Jersey.