What is a Prenuptial Agreement?

A prenuptial agreement is a popular way to safeguard your assets and financial security in the event of a divorce. Prenuptial agreements protect a variety of pre-marital assets including real estate, investment accounts, trusts, and foreign assets. Notably, if a couple is seeking a prenuptial agreement in the state of New Jersey, both parties must disclose all assets and obtain independent legal counsel.

The primary benefit that prenuptial agreements provide is less litigation in the case of a divorce. Prenuptial agreements can also help the family of one spouse in the event that there are shared assets such as a family business.

Who Should Pursue a Prenuptial Agreement?

A prenuptial agreement is highly recommended for certain people. For example, if you own a business, expect to inherit a sizeable amount of money, have/earn significantly more than your spouse, or are marrying somebody with significant debts, pursuing a prenuptial agreement may be in your best interest.

Concerns with Prenuptial Agreements

Many couples are against prenuptial agreements because they feel that it may impact their marriage long-term. However, prenuptial agreements are highly customizable to the specific couple. In New Jersey, many couples decide to opt for a “sunset clause” which enables them to void the agreement after a certain duration of married time has passed.

If you decide not to pursue a prenuptial agreement, high-asset divorces can become particularly intensive to litigate.

One of the primary causes of conflict during a divorce is the distribution of marital property. In other words, the distribution must be equitable, or fair, but it does not have to be equal.

It is very important that you understand the difference between separate property and marital property. In general, property that you owned before you were married or after you or your spouse filed for divorce is separate property. Property bought while you were married and before either of you filed for divorce is marital property. However, there are a few exceptions. In addition to property bought before the marriage or after the filing for divorce, there are two types of property that are excluded from equitable distribution:

• gifts intended for one spouse only that were not given by the other spouse and
• an inheritance specifically left to one spouse.

Inevitably, equitable and fair distribution of marital assets becomes much more clear if a prenuptial agreement is filed.

How to Pursue a Prenuptial Agreement

If a prenuptial agreement seems like something that could benefit you and your family, the first step is to reach out a reputable New Jersey attorney. Here are some general considerations to make when deciding on an attorney to represent you:

• is accessible
• shows compassion to your family
• is experienced in both negotiation and litigation
• offers a valuable initial consultation
• has the best interest of you and your future spouse

The next step is to schedule an initial consultation with your attorney in order to begin formulating a comprehensive prenuptial plan for your fam

As part of the New York Metropolitan Area, Bergen County is home to many high-income individuals. When these wealthy men and women marry for the second time, it is not unusual for one or both parties to have assets to protect. A good way to accomplish this goal, which is especially important when there are children from a previous marriage, is with a Bergen County prenuptial agreement.

When both parties have substantial financial, real estate, and other assets, the desire for a prenuptial, or antenuptial, agreement is often mutual. In situations where one future spouse has much more than the other, addressing the need for the document may be more difficult. However, the sooner you bring up the subject after making the decision to marry, the better.

New Jersey Prenuptial Agreements: Issues Addressed

The main reason couples choose to have a prenup is to protect their assets in case of divorce or death, In addition to a complete financial disclosure, which must be attached to the document, these are among the issues that are often addressed:

• one party’s interests in a family business;
• existing contractual obligations;
• trusts for children or other family members;
• rights regarding joint and separately owned property;
• division of property upon separation, divorce, death or another event;
• modification or elimination of spousal support; and
• the necessity of a will or trust to carry out the provisions of the document.

The agreement goes into effect upon marriage, but a time limit stating that the document will become ineffective after a certain period of time may be included.

The Elective Share

New Jersey law states that a surviving spouse is entitled to a one-third share of their estate when the other spouse dies. Unless addressed beforehand, this may possibly include assets that were left in trust for a child. A prenup can ensure that the assets of both spouses are distributed according to their agreed upon wishes.

Typical Assets Protected by a New Jersey Prenup

Bergen County high-asset couples might want to protect these and other assets:

• financial interests;
• real-estate properties;
• businesses;
• family-owned business;
• professional practices;
• trusts for children;
• inheritances;
• stocks, bonds, and other investments;
• pensions; and
• art collections and other valuables.

Limitations of a Prenup in New Jersey

In New Jersey, the best interests of the child are always of primary importance. For that reason court-ordered child support, child custody, parenting time, and other matters that affect children cannot be predetermined by a prenuptial agreement.

Crafting a Legally Enforceable Document

There are certain requirements that must be met for a prenuptial agreement to be legally enforceable:

• The agreement must be in writing.
• Each party must be represented by independent legal counsel unless he or she voluntarily and expressly waives this right in writing.
• A detailed statement must be attached to the document and must include the following:
  • assets;
  • credit card and other debt;
  • child support and alimony obligations from a previous marriage; and
  • any disabilities.
• The agreement must be signed by each party voluntarily after being given sufficient time to study it.
• The agreement must not be unconscionable.

What Constitutes an Unconscionable Agreement in New Jersey?

In The State of New Jersey, an unconscionable agreement is defined as one that would have one or more of the following results:

• It would render a spouse without means of support.
• It would cause a spouse to become a public charge.
• It would provide a spouse with a standard of living much lower than he or she enjoyed before the marriage.

Challenging Enforceability

If any of the requirements of the agreement were not met, then its enforceability may be challenged.

Burden of Proof

In New Jersey the burden of proof is on the party who is alleging that the document is unenforceable. That party must convince the court “by clear and convincing evidence” that it should set aside the agreement.

The challenger must prove that one of the following facts is true:

• He or she did not sign the agreement voluntarily.
• His or her spouse did not fully disclose all assets and financial obligations; he or she could not reasonably have obtained the information; and he or she did not waive the right to that information.
• He or she was not represented by independent counsel and did not waive in writing the right to such representation.
• The agreement was unconscionable at the time the it was signed.

There was an important change in the “unconscionable provision” as a result of the Amendment to the New Jersey Prenuptial Agreement, signed into law by Governor Christie in 2013. Before that amendment, a spouse could allege that the document was unconscionable at the time enforcement was sought. The change in law made it necessary to prove that the agreement was unconscionable at the time it was signed. This is more difficult to do. Speak With a New Jersey Prenuptial Agreement Attorney Prenuptial agreements aren’t for everyone, but they are suitable for many mature couples with substantial assets, especially if there are children from a previous marriage.

If you decide that a prenuptial agreement is appropriate for you and your prospective spouse, then each of you should contact your own New Jersey Prenuptial Agreement Lawyer. That attorney will help you analyze your situation, explain all you must do to make the document enforceable, and craft a document that meets your needs.

The sooner this agreement is dealt with, the sooner you can get on with the enjoyment of planning the details of your upcoming marriage.

The NJ prenuptial agreement lawyers at Aretsky Law Group, P.C., are experienced in drafting prenuptial, post-marital, and other documents. Call us 24/7 at 800-537-4154 as soon as possible to get started.

Your first instinct might be to say, “I thought you loved me!” But you then try to see things from his point of view.

Most couples, when they say, “I do,” believe that their marriage will last “till death do them part.” The reality is, however, that in spite of the divorce rate leveling off, many marriages will end in divorce.

Prenuptial agreements have become more common in recent years. This is especially true when one of the spouses has personal or family assets to protect. Another important reason for having a prenup is to protect the interests of children from a previous relationship.

Assets to Protect

New Jersey prenuptial agreements are written to protect these and other assets:

• homes,
• business assets,
• real estate and other property,
• other investment accounts,
• stocks and bonds,
• foreign assets,
• appreciation of assets,
• trusts,
• pensions, and
• inheritances.

Other Issues

While more common when one or both partners have many assets, prenups can also help those with more limited assets as well. In addition to assets, these documents can address these and other issues:

• debts,
• how to purchase a future home,
• possible modification or waiving of alimony,
• whether bank accounts will be separate or joint, and
• the drafting of a will to carry out all the provisions of the prenup.

FAQ’s About New Jersey Prenups

1. Are oral agreements enforceable?

No, prenuptial agreements must be in writing. Oral agreements are not enforceable.

2. Do I need an attorney?

It is best if each party has independent legal counsel. However, if you do not want to hire an attorney, you may sign a waiver stating that you give up that right. Like the prenup, this waiver must be in writing.

3. My fiancé wants me to sign a prenuptial agreement. I am unclear about what his financial situation really is. I need this information in order to make my decision. What should I do?

In order for the agreement to be enforceable, your fiancé must provide you with a complete disclosure of all of his earnings, property and financial obligations.

4. Can we include child support, child custody, or parenting issues in the agreement?

No, these issues are not considered in prenuptial agreements.

5. My partner and I plan to live together but not get married. Can I have a prenup drafted to protect my interests?

No, prenups do not apply to these relationships. You should instead consider a New Jersey Cohabitation and Domestic Partnership Agreement.

6. When does the document go into effect?

A prenup goes into effect as soon as the couple marries.

7. Can an end date be included?

Yes, you can include a clause that includes an end date. For example, you might state that the prenup becomes void after five years of marriage.

No one wants to think about divorce when about to enter a marriage that both parties hope will last forever. Nevertheless, many marriages fail, and people with significant property holdings, businesses, family trusts, or other assets, should consider protecting those assets with a prenuptial agreement.

Learn Your Options!

Do you have questions about prenuptial agreements? If so, you should contact an experienced family law attorney. Attorneys at Aretsky Law Group, P.C., understand the legal requirements necessary to draft prenuptial agreements that will be binding in the event that the marriage fails. Contact us 24/7 at 800-537-4154.