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.