FAQs: Prenuptial Agreements

People are waiting longer than ever to get married. This is especially true for couples in New Jersey - women get married on average at age 28, and men at age 30. This means that they've had more time to build their individual wealth, invest in their careers, acquire property and save for retirement. It makes sense that they want to preserve their premarital efforts and draft a prenuptial agreement before tying the knot. But not everyone understands what is required to ensure a prenuptial agreement in NJ is valid.

The state of New Jersey has implemented the Uniform Premarital Agreement Act. It governs the law of prenuptial agreements in NJ, dictating its formalities, definitions, and enforceability. A premarital agreement, or prenup, is a contract among 2 parties who plan to be married. Usually, the agreement will include provisions for the division and distribution of property, characterization of property, and spousal support. It is property-focused. Any agreements concerning the children will not be enforced.

The formality of the document is crucial to ensure the agreement is enforceable in court. The agreement always has to be in writing. If there are any other terms that the parties have agreed on orally, it does not matter - the court assumes the entirety of the agreement is in writing. Each spouse has to sign the agreement, and the agreement must include a schedule of the assets and debts each spouse has accumulated prior to the marriage. Without these signatures, the agreement is unenforceable.

The contract cannot predetermine any child support or custody arrangements in the event of a divorce. Public policy wants to avoid any issues where a child ends up with a parent who is incapable of raising them simply because the parties agreed it would be so over a decade ago.

As mentioned before, it must follow specific formalities: it being in writing and signed by each spouse. Additionally, there must be full and complete disclosure by each spouse of their financial circumstances. The parties cannot be made to sign the agreement against their will - if there is evidence that the signature was obtained under fraud or duress, the agreement is void. Sometimes, if the spouse has not had sufficient time to consider the agreement or seek out counsel, this could be a factor in determining if there was duress. In fact, if they do not obtain independent counsel, they must willingly and explicitly waive in writing this right. Additionally, the agreement cannot be unconscionable, whereby one spouse is left destitute or reliant on welfare.

Judges used to be able to look at the enforceability of prenuptial agreements in NJ only at the time anyone brought a suit to challenge the agreement. But, in 2013, Governor Chris Christie launched a reformation of family law in New Jersey, including premarital agreements. Now, judges must evaluate the agreements as of the time the parties signed the actual agreement, instead of when enforcement is sought (often years later). This means that courts can only consider the realities of the parties at the time of the contract - even if there has been a significant change in circumstances since the execution of it.

Yes. While the agreement is effective as soon as the parties get married, they can modify the agreement, which might happen if the spouses purchase major assets or incur significant debt. Any changes must be done in writing, signed by the parties and acknowledge any new additions. The best practice is to attach the amendments to the original written agreement and sign before a witness or two so that there is no question about the amendment.

The burden of proof is on the person who is challenging the premarital agreement - there is a presumption otherwise that it is valid. The challenger must show that the contract was signed unwillingly, it was unconscionable at the time it was signed, there was no full disclosure of the financial circumstances of the other spouse, or one did not have the opportunity to consult with independent legal counsel.

No - there is no strict requirement that a lawyer must draft these agreements. However, there are specific requirements under the law regarding the formality and content of these agreements. If these requirements are not met, there is a good chance that a court will strike down the agreement upon dissolution of marriage. Lawyers will make sure that the appropriate form is followed, and they will also be able to request a full disclosure from the other spouse. A good lawyer will be able to review the financial documents and determine if this was a reasonable disclosure, or if there are additional documents they need to ensure you have been given the whole story. They can also give you advice and counsel you against signing away any of your rights, or at least tell you what the repercussions of doing so will be.

If you have questions about whether your prenuptial agreement in NJ is enforceable, or if you need assistance in getting one drafted before your marriage, contact the law offices of Peter Van Aulen today for a free initial consultation at 201-845-7400.