Blog

Prenuptial Agreements, What’s the Deal?

Planning your wedding can be a lot of fun. There is much to do for the big day — the perfect dress, the matching tuxedo, the ceremony, the reception, the honeymoon and the million other details in between. Let me suggest adding another item to that seemingly never-ending “to-do” list – consider entering into a Prenuptial Agreement.

Years ago, this subject was taboo. However, the divorce rate is at approximately 50%.  And second or subsequent marriages end in divorce at an even higher percentage.  This is a reality even for those feeling the wonderful, magical butterflies of love. Despite the feeling of bliss, you may realize that you need a Prenuptial Agreement to address the allocation of assets or support in the event of a divorce or upon death.

Today, many couples, prior to marriage, want a signed agreement that addresses issues in the event of death or divorce. The way to go about defining these rights and obligations in the event of a divorce or upon death is through a Prenuptial Agreement.

In New Jersey, statute governs the requirements of a Prenuptial Agreement.  In sum, the statute addresses three main areas that a Prenuptial Agreement must consider.

Prenuptial Agreement Musts

First, the Prenuptial Agreement must contain full and fair disclosure of all the earnings, property and financial obligations of the parties. To that end, a complete and comprehensive schedule of assets and liabilities of both parties must be attached to the agreement. Tax returns and other proof of income or earnings should also be attached to the agreement. Unknown values should be ascertained and included in the schedules and in the agreement. If you choose not to value certain assets, the agreement must include specific and detailed written waiver language.

Second, attorneys must represent both parties.  Alternatively, one, or both parties, must provide a specific written waiver of the right to hire an attorney. I will not handle a Prenuptial Agreement when the other party does not have an attorney. This situation spells disaster and is something to avoid because the person who does not have an attorney may later on claim that he or she was forced to sign the agreement or did not understand its terms. Both parties need their own attorney. One attorney cannot represent both parties.

Third, the agreement must not be unconscionable. Is the agreement just so unfair and so inequitable that it cannot be enforced? Would it leave a party without means for reasonable support? If so, chances are the agreement is unconscionable and would not be enforced by a Court. In that case, the agreement is meaningless and the terms contained in it are not binding.

Child Support Issues

Besides the three main areas, a Prenuptial Agreement also cannot adversely affect a child’s right to support. As such, any waiver of child support or the like will not be enforced by a Court. Therefore, Prenuptial Agreements should specifically state that there are no provisions regarding child support.
Prenuptial Agreements can also address the parties’ rights upon death. The agreement can memorialize intentions as to the disposition of assets should death occur.

Enforceability of a Prenuptial Agreement

If a legal issue later arises regarding the enforceability of a Prenuptial Agreement, the burden of proof under the statute is on the party alleging that the agreement is unenforceable. The standard is clear and convincing evidence. This is a higher standard than preponderance of the evidence, but a lower standard than beyond a reasonable doubt.

Prenuptial Agreements contain significant and crucial decisions.  As such, it is critical that you have your own attorney to help you.  Your attorney will walk you through the Prenuptial Agreement process before you walk down the aisle. While a Prenuptial Agreement may not add to the feelings of marital bliss, it could prove to be an invaluable asset in the future.

Please contact me at jlawrence@lawlawfirm.com if you have questions about this post or any other family law matter.

Subscribe to Our Blog

SHARE THIS POST:

Related Posts

Blog
My husband left me and I don’t know where he is. Can I get a divorce?

My husband left me and I don’t know where he is. Can I get a divorce? This blog originally appeared on NJMoneyHelp for NJ.com by Karin Price Mueller on June 15, 2020. Q. My husband left me two years ago and I have no idea where he is. We own our house together and an…

Read More
Blog
COVID-19’s Impact on Family Law

I was recently quoted in a New Jersey Law Journal article about COVID-19’s impact on family law. The article is entitled, State Court Filings Drop 20% as Judges, Lawyers Cope with COVID-19 Disruptions. While the article discussed court filings statewide, my quotes focused on New Jersey’s Family Division. The article says that Family Division filings…

Read More
Blog
There is No Community Property in New Jersey

There is no community property in New Jersey. Said differently, the concept of community property is not a recognized legal concept in New Jersey divorce cases. In New Jersey, the division of property amid a divorce falls under principles of equitable distribution. All marital assets get equitably distributed in a New Jersey divorce. Among these…

Read More
Blog
Practicing Law During COVID-19

Jeralyn Lawrence, Founder and Managing Partner of Lawrence Law, took place in MyShingle.com’s interview series – Pandemic Law Practice: How 14 Solo & Small Firm Lawyers Are Serving Clients and Keeping the Wheels of Justice Turning. Click here to hear the interview. A couple of highlights from Lawrence’s interview regarding client issues Custody and parenting…

Read More
Blog
The Goal of Divorce

The main goal of divorce is to reach an agreement with your spouse. The terms of the agreement are memorialized, in writing, in a Marital Settlement agreement. This agreement is also known as a Property Settlement Agreement. A very high percentage, meaning almost all, divorce cases settle. In other words, a very small percentage of…

Read More
Blog
What is Financial Abuse?

I was recently quoted in a story I’m married to a control freak who is not sharing our stimulus payment. What can I do? Basically, the focus of the article is how to handle a situation when one spouse refuses to share coronavirus stimulus money with the other. While the situation is unique to the…

Read More
Call Now ButtonCall Us