Prenuptial agreements are often associated with the very wealthy or famous. And while celebrities and billionaires can certainly benefit from a prenup, they’re not the only ones who should be proactive about building financial security and stability into a marriage.
An experienced family law attorney can help you ensure that your prenup reflects your needs and goals if your marriage ends in divorce. But how are these agreements enforced?
What is a premarital agreement?
A premarital agreement, also called a prenuptial agreement, is a legally binding contract that details how assets, debts, and even spousal support obligations will be allocated if the marriage (or civil union) ends.
There are a few common misconceptions surrounding a prenup. One is that you need to have substantial assets (think lifestyles of the rich and famous) before it’s worth signing a prenup. Another frequently-cited concern is that signing a prenup indicates the couple believes their marriage is doomed.
In our experience, the opposite can actually be true for both of these beliefs.
Because prenups can include clauses for everything from pet custody to intellectual property to student loan debt, signing a premarital agreement can strengthen a relationship by giving a couple the opportunity to have difficult conversations in advance of their marriage. They can also work through complex, sensitive issues they may face in the future.
But if a marriage does come to an end, a premarital agreement creates an enforceable and equitable division of assets that will protect both parties and give them clearly defined legal rights in the event of a divorce. This will also hopefully avoid unnecessary time, money and emotional capital spent negotiating terms when both parties may not be at their optimal selves.
Prenups can also support estate planning goals. While estate plans are their own separate legal issue, a clear prenup can aid estate planning by further clarifying what is considered marital property. For blended families, this clarification can decrease stress during difficult times.
Understanding the New Jersey Uniform Premarital Agreement Act
Prenuptial agreements in New Jersey are governed by the Uniform Premarital Agreement Act. This statute sets out the requirements that must be met to create an enforceable prenup, and it applies to both marriages and civil unions (but not to those who are cohabitating or domestic partners).
The Uniform Premarital Agreement Act covers eight issues:
- Rights and obligations of each spouse in any property
- Rights to manage or control any property
- Distribution of property at divorce, death, or any other event
- Modification or elimination of alimony
- Arrangements (e.g., wills or trusts) to carry out the agreement’s provisions
- Ownership rights in and distribution of death benefits from life insurance
- The choice of law governing the construction of the agreement
- Any other matter, such as personal rights and obligations, provided public policy isn’t violated
An experienced family law attorney can help you draft a well-crafted, thoughtfully considered prenuptial agreement, so you can move forward with your marriage with peace of mind.
Requirements in an enforceable New Jersey premarital agreement
With the help of an experienced New Jersey family law attorney, creating a strong, enforceable premarital agreement can be less complicated than you may think. And if you can enforce the terms of the agreement in New Jersey, other states will recognize them as well.
Here are the general requirements for an enforceable prenup:
The document must be executed before the marriage or civil union takes place
This seems like common sense, but premarital means before marriage. While this doesn’t mean a prenup can’t be amended or changed after the big day, it does mean you need to add it to your wedding planning to-do list.
(If you didn’t sign a prenup but want something similar after you are married, talk to your attorney about what a mid-marriage or postnuptial agreement might look like for you.)
The document must be in writing
Prenuptial agreements are legal contracts, and putting them in writing ensures all parties have given the terms the appropriate level of consideration. Verbal agreements are not valid.
Both parties must have given full financial disclosure at the time of signing
The goal of a premarital agreement is to provide for the equitable distribution of assets, but in order to accomplish this, all assets need to be fully on the table and documented in detail in the agreement. Hiding properties, bank accounts, investments, or other assets could invalidate the prenup.
The agreement must be notarized
Notarization requires both parties to present themselves with photo identification, which helps prevent fraudulent execution or altered documentation. If you’re using attorneys, they can sign the agreement instead of a notary, which helps make the process even smoother.
The agreement must be fair to and agreed upon by both parties
A fair prenuptial agreement doesn’t necessarily mean everything is divided evenly between both parties. Rather, it means that each partner’s contributions to the assets and the relationships are given fair consideration prior to distribution.
For example, if you bring property into the marriage, it’s fair for you to take it with you. But if you bring in a property that your spouse invests in improving with the understanding there would be a future profit, it may be fair for the agreement to permit them to recoup some of their investment.
This step can be tricky, and it’s important to take future earning potential and standard of living into consideration when drafting a prenup. Many couples find it wise to include a “sunset clause” in their agreement, meaning that the terms will be revisited or modified after a predetermined length of time. Some couples build in “step-in” provisions that automatically modify the terms as time goes on and the couples pre-specify what those modifications are.
The 2013 revision of the Uniform Premarital Agreement Act required that a court determine whether the agreement is valid before the union takes place (as opposed to reviewing the contract if and when divorce papers are filed).
New language in the Act asks the court to consider whether both parties had an attorney advising them prior to signing and if the agreement was signed under coercion or distress.
If a prenup meets these conditions, it is highly likely it will be enforceable in New Jersey.
Factors used to challenge the validity of marital agreements
New Jersey law establishes specific conditions under which a premarital agreement can be successfully challenged.
A premarital agreement can be declared null if:
- Either spouse can prove they signed a prenup under coercion or duress
- There wasn’t full financial disclosure
- Either party failed to consult with legal counsel prior to the agreement’s execution
Each of these scenarios has specific criteria that must be met.
For example, if you suspect that your partner has not given an accurate accounting of assets but you waive your right to seek disclosure of any additional assets, you can’t go back later and try to gain access to that information.
On the other hand, if it becomes apparent that full disclosure wasn’t provided and it isn’t reasonable to expect you would have known about hidden assets, you can ask the court to void your prenup.
Reach out to our Morristown marital agreement attorneys
The attorneys at our law firm have extensive experience in all aspects of premarital agreements. We know what makes a prenup enforceable in the future and can help you identify and understand the potential issues unique to your situation.
If you’d like to explore your options for a prenuptial agreement, make an appointment to coordinate your strategy session with our team.