South Jersey Premarital Lawyer

A prenuptial agreement is also known as a premarital agreement or an antenuptial agreement. This type of agreement may be used by a couple to determine, prior to marriage, what each party's rights and obligations will be in the event of divorce. Premarital agreements are governed by the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et seq. The agreement must be in writing and it must have a statement of assets attached to it. It becomes effective upon the marriage of the parties.

Premarital agreements are entered into by prospective husbands and wives before they get married. If a premarital agreement is properly drafted, it can save the parties significant emotional and financial expense if they get divorced.

How do you determine if a prenuptial agreement is legally binding?

There is a three-pronged test that must be addressed by a court if the agreement is challenged.
This test is:

1. Was the agreement entered into voluntarily;
2. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
3. Was there full disclosure of all assets, liabilities and income?

If these three prongs can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at the time of enforcement, which shall be determined by the court as a matter of law.

What terms should be in a Premarital Agreeement?

The parties to a premarital agreement may negotiate concerning the following areas:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. 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;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy.

It is very important to note, a premarital agreement cannot predetermine issues relating to children including child support, custody, or parenting time.

What terms should not be included in a premarital agreement?

Child Custody;

Child Support; and,

Visitation.

A premarital agreement cannot set out the custody, child support or visitation for a child. The agreement cannot limit child support or any other types of financial support for a child. This includes costs to maintain health insurance or life insurance.

What are the essential requirements that must be satisfied in order for a
premarital agreement to be upheld?

1. There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be annexed to the agreement that sets forth the parties’ earnings, property, and financial obligations. A Case Information Statement should also be attached to the agreement. Click for Agreement
2. Both parties should be represented by attorneys. Most likely, a premarital agreement will not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
3. The agreement must not be unconscionable. An unconscionable premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it. N.J.S.A. 37:2-32 defines a premarital agreement as unconscionable if certain circumstances should arise.

These situations are as follows:

(i) When a spouse is rendered without a means of reasonable support.

(ii) When a spouse becomes a public charge.

(iii) When a spouse is provided a standard of living far below that which was enjoyed before the marriage.

New Jersey Divorce Statutes Title 37, Section 37:2-34.

For other questions or concerns regarding premarital agreements, contact the experts
at Burnham Law Group.