Premarital agreements, also called “prenuptial” or “postnuptial” agreements in some states, are contracts made between prospective spouses considering marriage, which become effective at the time of the marriage.
The general purpose of premarital agreements is for prospective spouses to define, prior to marriage, their rights and obligations on financial issues, including the division of property or spousal support in the event they separate or divorce.
If properly drafted, these agreements can save both spouses major emotional and financial expenses if their marriage comes to an end. Premarital contracts also speed up and streamline the divorce process because it can avoid the time-consuming process of having a court resolve issues that have already been addressed in the premarital agreement.
Issues that can be addressed in New Jersey premarital agreements:
- The rights and obligations of both spouses regarding joint and separate property, whenever and wherever acquired or located.
- The right to buy, sell and otherwise manage and control property.
- The division of property upon separation, divorce, death or the occurrence or nonoccurrence of any other event.
- The modification or elimination of spousal 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 and interpretation of the agreement
- Any other matter, including personal rights and obligations as long as it’s not in violation of public policy.
Limitations of premarital agreements in New Jersey
Prospective spouses may not predetermine issues related to children which include child support payments and custody in their premarital agreements. These are issues that are typically decided by a court using a “best interests” standard. Child related provisions in a premarital agreement would also go against public policy because they are not dealing with the spouses but the child.
Requirements for a valid premarital agreement in New Jersey
New Jersey enacted its version of The Uniform Premarital Agreement Act (UPAA) in 1988. The UPAA provides that all premarital agreements must be in writing, signed by both spouses and a statement of assets is to guarantee that there will be fair and reasonable disclosure of the spouses’ financial information. After the marriage, the premarital agreement may be amended or revoked only by a written agreement signed by both spouses.
It is advisable, although not required, 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.
Challenging premarital agreements
The spouse that’s contesting the premarital agreement has the burden of proof and must show by clear and convincing evidence that either:
- They executed the agreement involuntarily
- The agreement was unconscionable at the time it was signed
- He or she was not provided with a full and fair disclosure of the earnings, property and financial obligations of the other spouse before the signing of the agreement.
- Before the signing of the agreement, he or she 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.
- Before the signing of the agreement, he or she did not consult and did not voluntarily and expressly waive, in writing, the opportunity for counsel.
The court will find the premarital 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 he or she enjoyed before the marriage.