New Jersey Premarital Agreements
Posted in Attorney Client Relationship, Family Law Basics, Marriage & Family, Property & Asset Distribution | |
Premarital agreements, also referred to as prenuptial or antenuptial agreements, can be a difficult topic of discussion among couples getting married, especially if one party is seeking the agreement. A prospective spouse opposed to the idea will typically view such agreements as an affront to the institution of marriage and the relationship as a whole. However, a properly drafted prenuptial agreement can save spouses a great deal of emotional and financial expense in the event of a divorce.
In New Jersey, prenuptial agreements are governed by the Uniform Premarital Agreement Act, which was enacted in 1988. The Act requires that all prenuptial agreements be in writing, with a statement of assets attached to it. Parties are required to sign the agreement, which becomes effective upon the marriage of the parties. The contents of a prenuptial agreement are limited to certain areas. For instance, parties can negotiate the following:
a. the rights and obligations of each of the parties in any property of either or both of them whenever and wherever acquired or located;
b. the rights 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;
c. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
d. the modification or elimination of spousal support;
e. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
f. the ownership rights in and disposition of the death benefit from a life insurance policy; and
g. the choice of law governing the construction of the agreement.
In addition, parties can negotiate any other matter, including their personal rights and obligations, not in violation of public policy. It also cannot adversely affect the right of a child to support or stipulate which party should have custody of any child born of the marriage.
A prenuptial agreement may be amended or revoked after marriage only by a written agreement signed by the parties. The amended agreement or revocation is enforceable without consideration. A party may also seek to set aside a prenuptial agreement as unenforceable. However, the party seeking to set aside an agreement must prove that: (a) the agreement was not entered into voluntarily; (b) the party did not have an opportunity to consult with independent legal counsel; and (c) there was not full disclosure of all assets, liabilities and income. If these three factors can be proven by a party, then the burden to set aside the agreement shifts to the other side and the primary focus will be on whether the agreement was fair and reasonable, which is a determination made by the court.