Prenuptial agreements have greatly increased in popularity in recent years as a result of changing attitudes toward divorce and a heightened awareness of its financial consequences to those involved. Such agreements can be extremely useful not only to protect one’s own assets in the event of divorce, but to ensure stability in the post-divorce relationship and minimize contentious litigation. There are generally two questions that come to mind when discussing prenuptial agreements:
We will provide brief answers to both questions in this Divorce Guide.
Effective in November 1988, the New Jersey Legislature adopted the Uniform Premarital Agreement Act (UPAA). The Act addresses the permissible subject matter of prenuptial agreements and states that two people contemplating marriage may enter into an agreement regarding:
Prenuptial agreements in New Jersey are enforceable as long as (1) there has been full disclosure and (2) the agreement is not “unconscionable,” meaning excessively unfair. The Court starts out assuming that a prenuptial agreements is enforceable. As a result, the person asking that the Court refuse to honor the agreement has the burden to establish, by clear and convincing evidence, that:
It is important to examine these criteria (and their subparts) closely.
The first is fairly obvious, at least at first glance. If someone signs an agreement involuntarily, the Court will not enforce that agreement. Take, for example, someone who forces you to sign a contract with a gun to your head. Enforcing that contract afterward would be absurd. Nevertheless, there are contexts in which “involuntary” is less clear. If you give your spouse-to-be an ultimatum on the day of the wedding: “Sign the agreement or I walk,” would that be considered involuntary? It is critical that a prenuptial agreement is signed as far in advance of the wedding, and in the most neutral and detached circumstances, as possible to ensure that the agreement is ultimately enforced.
The second criteria is whether the agreement was “unconscionable” when it was signed. “Unconscionable” means excessively unfair or unreasonable. Notably, the law as to prenuptial agreements was amended in 2013. Despite the recent amendments, at least a few things are clear. The Court will refuse to enforce an agreement if either spouse proves that, before execution of the agreement, he or she:
You may have noticed that all four of these requirements relate to circumstances that existed on or before the time the agreement was signed. This is a result of the recent changes discussed earlier. Previously, the Court would also consider unconscionability as of the date of enforcement, generally after the parties have separated and are seeking a divorce. Being legally required to consider facts only as they existed when the agreement was signed prohibits the Court from considering things like the birth of children or, perhaps, one spouse or the other having won the Mega Millions jackpot a few years into the marriage. The amendment, consequently, dramatically increases the enforceability of prenuptial agreements, and it indicates the Legislature’s intent to promote their use in the future.
Importantly, the amendment took effect on June 27, 2013 and applies to all premarital agreements either (a) signed on or after that date or (b) signed before that date but voluntarily revised afterward according to procedures set forth by law. If your prenuptial agreement was signed before June 27, 2013 and has not been voluntarily amended, the previous laws remain in effect.
There a number of other considerations in entering into a prenuptial agreement:
Finally, the language of the agreement itself is perhaps the most important consideration. We strongly recommend that anyone considering entering into a prenuptial agreement schedule a consultation with the DeTommaso Law Group or other qualified matrimonial attorneys. Distinctions in language that may seem subtle now can lead to serious issues down the road.
DISCLAIMER: The information presented here is of a general nature only, intended simply as background material, is current only as of the latest revision date in January 2015, omits many details and special rules, is not guaranteed to be accurate or applicable to your case, and cannot be regarded as legal advice. Viewing this information does not create an attorney-client relationship between the reader and the DeTommaso Law Group. We strongly recommend that those consulting the Divorce Guide secure the representation of an attorney, and we require that those consulting our Divorce Guide perform independent legal research and refrain from either acting or failing to act based on this information. Thank you.