Marriage is one of the biggest commitments in a persons life. A prenuptial or ante-nuptial agreement, also known as a premarital or pre-civil union agreement, is an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union. These agreements become effective at the time of the parties’ marriage or the establishment of a civil union and allow spouses or partners to minimize some of the uncertainties and concerns commonly associated with a marriage or civil union.
New Jersey Law on Prenuptial Agreements
In New Jersey, the “Uniform Premarital and Pre-Civil Union Agreement Act” governs the requirements, contents, limitations, and enforceability of prenuptial agreements. N.J.S.A. 37:2-31 to -39. Through a prenuptial agreement, spouses or partners may enter into a contract prior to a marriage or the establishment of a civil union to predetermine important concerns related to the following:
- 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, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of support for a spouse or partner;
- 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 their personal rights and obligations, not in violation of public policy.
While prenuptial agreements establish certain post-divorce or post-dissolution rights and obligations related to the topics discussed above, it is important to understand prenuptial agreements cannot permanently resolve certain issues, such as custody, parenting time, and child support.
All prenuptial agreements must be in writing and voluntarily signed by each spouse or partner before a marriage or the establishment of a civil. A prenuptial agreement must be based on full disclosure and include a written a statement of assets. Each party to a prenuptial agreement must also have access to independent legal counsel. Generally, courts encourage comprehensive and particularized prenuptial agreements assuming the parties entered into the written agreement voluntarily based on a full disclosure and access to independent legal counsel.
Challenging a Prenuptial Agreement
It is important to understand a party can challenge the validity of a prenuptial agreement under a number of circumstances. However, a spouse or partner seeking to set aside or challenge a prenuptial agreement has the burden of proving, by clear and convincing evidence, he or she executed the agreement involuntarily or the agreement was unconscionable at the time of execution. In order to challenge the validity of a prenuptial agreement, New Jersey courts may find a prenuptial agreement is unconscionable in the event a party to the agreement:
- Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
- Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
So long as a competent and informed party to a written prenuptial agreement has sufficient opportunity to reflect on her actions as well as access to legal advice and the advice of any relevant experts, a court generally will not interject its own opinion of what is fair and equitable and reject the wishes of the parties except in the most unusual case.
A prenuptial agreement should be tailored to protect the rights of each party to the agreement. For this reason, it is important to speak with an attorney entering into a prenuptial agreement. The attorneys at Drake Law Firm are dedicated to protecting the interests of spouses and partner’s in need of an attorney to draft, review, enforce, or challenge a prenuptial agreement.
Please do not hesitate to contact our office in the event you wish to speak with one of our family lawyers about a prenuptial agreement. We have office locations in Atlantic County as well as Burlington County. From these offices, we advocate on behalf of clients residing in Absecon, Brigantine, Egg Harbor City, Egg Harbor Township, Galloway, Hammonton, Linwood, Longport, Margate, Mullica, Northfield, Port Republic, Somers Point, Ventnor, Cherry Hill, Collingswood, Gibbsboro, Haddonfield, Medford, Marlton, Shamong, Tabernacle, Mt. Laurel, and many other surrounding areas.