Tips for New Jersey Prenuptial Agreements
Provided by HG.org
Listen, getting married can be a very exciting time filled with love and excited anticipation of a future with your loved one. But, it does not mean that you should throw all reason to the wind. If you or your soon-to-be-spouse have either a large number of assets or a number of debts, and you live in New Jersey, it may be wise to consider in advance what you will do about those assets/liabilities just in case anything should happen, and these tips will help you do that.
In New Jersey, prenuptial agreements, which are also called “premarital,” “antenuptial,” “postnuptial,” or simply “prenup” agreements, are contracts made between prospective spouses which become effective upon marriage. If drafted properly, these agreements can save both spouses significant expense and emotional trauma if the marriage comes to an end. Prenuptial agreements also expedite the New Jersey divorce process because they can help avoid the time-consuming process of having a court resolve issues that have already been addressed in the premarital agreement.
What issues can be addressed in a New Jersey premarital agreement?
*Both spouses' rights and obligations to joint and separate property, whenever and wherever acquired or located, including he right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of, or otherwise manage and control the property, and how that property will be divided upon separation, divorce, death, or the occurrence or nonoccurrence of any other event;
*The modification or elimination of spousal support (alimony);
*The making of a will, trust, or other arrangement to carry out the provisions of the agreement in the event of the death or disability of either spouse;
*The ownership rights in, and disposition of, the death benefit from a life insurance policy;
*The choice of law governing the construction and interpretation of the agreement, and;
*Any other matter, including personal rights and obligations, as long as such matter is not in violation of public policy.
Are there any limitations to prenuptial agreements in New Jersey?
Prospective spouses may not predetermine child support or custody arrangements for children in a prenuptial agreement. These issues are typically decided by a court using a “best interests” standard, meaning the court must look at what is in the best interests of the child at the time of the separation and after. Any other rule could result in ridiculous circumstances like a child, who was not even born at the time of entering into the prenuptial agreement, being forced into the custody of a wife who became an alcoholic and drug abuser with no job. Obviously, public policy wants to avoid such situations, so these issues cannot be included in a prenuptial agreement in New Jersey.
What are the requirements for a valid New Jersey prenuptial agreement?
New Jersey law provides that all premarital agreements must be in writing, signed by both spouses, and a statement of assets must be attached to the agreement. The purpose of the statement of assets is to guarantee that there will be fair and reasonable disclosure of the respective spouses’ financial information, because misleading a prospective spouse about assets or liabilities at the time of entering into the prenup can be a basis for invalidation of the agreement. After the marriage, the premarital agreement may be amended or revoked only by a written agreement signed by both spouses.
Although not required, it is advisable that both spouses consult with an attorney before entering into a premarital agreement. In situations where one spouse does not hire an attorney, a statement must be made in the premarital agreement that he or she freely, knowingly, and voluntarily waived the right to be represented by counsel or it could form a basis to challenge the agreement.
Challenging a prenuptial agreement
The spouse that contests the premarital agreement has the burden of proof and must show by clear and convincing evidence that either s/he executed the agreement involuntarily, the agreement was unconscionable (i.e., grossly unreasonable) at the time it was signed, that the other spouse did not make a full and accurate disclosure of assets and liabilities on the statement of assets, s/he did not have adequate knowledge of the property or financial obligation of the other spouse, or s/he did not consult with independent counsel and did not voluntarily and expressly waive the opportunity for legal counsel before signing the agreement. The court will find the prenuptial agreement unconscionable if it is shown that the challenging spouse would be without reasonable support, would have to depend on public assistance or would be provided a standard of living far below the one s/he enjoyed before the marriage.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
What issues can be addressed in a New Jersey premarital agreement?
*Both spouses' rights and obligations to joint and separate property, whenever and wherever acquired or located, including he right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of, or otherwise manage and control the property, and how that property will be divided upon separation, divorce, death, or the occurrence or nonoccurrence of any other event;
*The modification or elimination of spousal support (alimony);
*The making of a will, trust, or other arrangement to carry out the provisions of the agreement in the event of the death or disability of either spouse;
*The ownership rights in, and disposition of, the death benefit from a life insurance policy;
*The choice of law governing the construction and interpretation of the agreement, and;
*Any other matter, including personal rights and obligations, as long as such matter is not in violation of public policy.
Are there any limitations to prenuptial agreements in New Jersey?
Prospective spouses may not predetermine child support or custody arrangements for children in a prenuptial agreement. These issues are typically decided by a court using a “best interests” standard, meaning the court must look at what is in the best interests of the child at the time of the separation and after. Any other rule could result in ridiculous circumstances like a child, who was not even born at the time of entering into the prenuptial agreement, being forced into the custody of a wife who became an alcoholic and drug abuser with no job. Obviously, public policy wants to avoid such situations, so these issues cannot be included in a prenuptial agreement in New Jersey.
What are the requirements for a valid New Jersey prenuptial agreement?
New Jersey law provides that all premarital agreements must be in writing, signed by both spouses, and a statement of assets must be attached to the agreement. The purpose of the statement of assets is to guarantee that there will be fair and reasonable disclosure of the respective spouses’ financial information, because misleading a prospective spouse about assets or liabilities at the time of entering into the prenup can be a basis for invalidation of the agreement. After the marriage, the premarital agreement may be amended or revoked only by a written agreement signed by both spouses.
Although not required, it is advisable that both spouses consult with an attorney before entering into a premarital agreement. In situations where one spouse does not hire an attorney, a statement must be made in the premarital agreement that he or she freely, knowingly, and voluntarily waived the right to be represented by counsel or it could form a basis to challenge the agreement.
Challenging a prenuptial agreement
The spouse that contests the premarital agreement has the burden of proof and must show by clear and convincing evidence that either s/he executed the agreement involuntarily, the agreement was unconscionable (i.e., grossly unreasonable) at the time it was signed, that the other spouse did not make a full and accurate disclosure of assets and liabilities on the statement of assets, s/he did not have adequate knowledge of the property or financial obligation of the other spouse, or s/he did not consult with independent counsel and did not voluntarily and expressly waive the opportunity for legal counsel before signing the agreement. The court will find the prenuptial agreement unconscionable if it is shown that the challenging spouse would be without reasonable support, would have to depend on public assistance or would be provided a standard of living far below the one s/he enjoyed before the marriage.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
