Many people wonder why anyone who is about to get married would think about what would happen if they got divorced. The process of a divorce can be long and complicated, especially when children, estates, and business ownership are tied into the marriage. A prenuptial agreement can help protect you and your assets in the event a divorce is necessary.
What Is A Prenuptial Agreement?
A prenuptial agreement, also known as a premarital agreement or pre-civil union agreement, is a legally binding document that commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.
The prenuptial agreement can cover any assets or property an individual brought into the marriage, as well as any assets which were acquired during the marriage. In the absence of a prenuptial agreement, the process of dividing property may become arduous and contentious.
What Laws Govern Prenuptial Agreements?
In New Jersey, the enforceability and requirements of premarital agreements are set forth in the “Uniform Premarital and Pre-Civil Union Agreement Act” statute, or N.J.S.A. 37:2-31. This statute sets forth the formalities, contents, and requirements for enforceability of a premarital agreement.
What Can and Cannot Be Included in a Prenuptial Agreement?
Parties to a premarital or pre-civil union agreement may contract with respect to:
• 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 non-occurrence of any other event
• The modification or elimination of spousal or one partner in a civil union couple support
• 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.
One aspect a couple cannot include in a prenuptial agreement is anything dealing with child custody or child support. In New Jersey, the courts will make all decisions related to custody and child support based on the best interest of the children. This means a couple cannot agree on custody of current or future children or the amount of child support.
When Does a Prenuptial Agreement Become Effective?
A premarital or pre-civil union agreement becomes effective upon marriage of the parties or upon the parties establishing a civil union.
How Do I Set Aside a Prenuptial Agreement?
A prenuptial agreement is not enforceable if the party seeking to set aside the agreement proves that either (1) the party executed the agreement involuntarily, or (2) the agreement was “unconscionable” when it was executed because, before executing the agreement, that party:
1. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party
2. 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
3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party or
4. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Protect Your Property and Interests With a Prenuptial Agreement
If you are considering drafting a premarital or pre-civil union agreement, or your soon-to-be spouse has presented you with one, you need the guidance of an experienced family law attorney. Contact The Law Office of Joseph A. DiPiazza, LLC at 201-494-2800 to schedule a legal consultation. We can help you decide exactly what you need, work with you to create an appropriate agreement, and help you understand how the agreement will impact you.
