Pre-Nuptial Agreements

Pre-nuptial agreements are becoming more common as people get married later in life, or remarry, and have property and financial worth they seek to protect. Entering into a pre-nuptial agreement before marriage is an attempt to protect whatever assets you enter the marriage with and to provide for their ultimate disposition. Pre-nuptial agreements may also be a useful tool when one partner has children from a prior marriage and wishes to protect certain assets for the benefit of their own children.  Pre-nuptial agreements require full disclosure of income and assets, and it is highly recommended that the parties be represented by attorneys. While courts strive to enforce agreements, it is important that a pre-nuptial agreement not be unconscionable or shock the conscious of the court.

Frequently Asked New Jersey Pre-nuptial Agreement Questions

What is a pre-nuptial agreement?

In New Jersey, a pre-nuptial agreement is synonymous to a premarital and/or antenuptial agreement. Each of these terms describe an agreement reached between parties prior to a marriage setting forth the terms that will dictate and control their respective obligations and entitlements at the time of any subsequent divorce proceeding.

What marital terms can be negotiated in a premarital agreement?

Parties to a premarital agreement are free to discuss and determine most issues that are generally addressed incident to divorce, including but not limited to alimony and equitable distribution of property. However, issues of custody and parenting time cannot be addressed pursuant to a premarital agreement.

What martial terms can’t be included in a premarital agreement?

Parties cannot determine issues of custody, parenting time, child support, or other child related issues.

When should a premarital agreement be signed?

A premarital agreement should be negotiated and signed well in advance of the planned wedding date. Ample opportunity must be afforded to both parties to discuss and determine the parameters of the agreement, and to permit each time to discuss the terms of same with an attorney and any additional experts necessary.

Can a premarital agreement be signed after the wedding?

To be enforceable, a premarital agreement must be executed by both parties prior to the wedding.

What are the essential requirements that must be satisfied in order for a premarital agreement to be upheld?

A premarital agreement must be in writing, executed by both parties, and entered into knowingly and voluntarily. There must also be full disclosure as to both parties financial circumstances at the time of execution. The parties must each have an opportunity to retain counsel, or alternatively, must expressly, knowingly and voluntarily waive this right in writing.

What are the reasons why a pre-nuptial agreement may be declared invalid by the court in New Jersey?

A premarital agreement may be held invalid under the following circumstances: (1) the agreement was not reduced to writing; (2) the agreement was not executed by both parties; (3) there existed undue influence on one or both of the parties at the time of execution; (4) one or both parties failed to fully disclose the entirety of his/her financial circumstances; (5) one or both parties did not have the opportunity to speak with an attorney prior to executing the agreement or did not waive his/her right to do so; and/or (5) the agreement is deemed legally unconscionable at the time of execution.

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