New Jersey Prenuptial Agreements
In the absence of a well drafted prenuptial agreement, also known as pre-marital agreement or simply as a “prenup”, a contested divorce will often be extremely expensive to litigate and may well subject the spouses’ assets and incomes to financially devastating equitable distribution or alimony awards. Those who have been scarred by the emotional and financial costs of prior contested divorce actions will understand more than most the value and advisability of having a good prenuptial in place before heading to the proverbial chapel again.
There are many circumstances in which the wisdom of securing a prenuptial agreement before saying “I do” simply cannot be understated, either for your own protection, for the protection of your future spouse, or for the protection of other family members. Some of the circumstances which should seriously cause you to consider a prenuptial agreement are:
- Your income and/or assets are significantly greater than your future spouse’s and you want to preserve your wealth in the unfortunate case of a divorce.
- You have obligations to children born from a previous marriage and you want to make sure that you will be able to satisfy them in the unfortunate event that your future marriage will end in divorce. In addition, your will want to protect your future spouse’s income and assets from possibly being utilized to satisfy your support obligations.
- You and your future spouse plan to keep your finances separate. In the absence of a prenuptial agreement to clarify what will be deemed separate property and what will be deemed marital property, all the income you will earn and all debt you incur during the marriage by default will be deemed marital income and liabilities. Keeping separate accounts during the marriage is not enough to change these legal conclusions.
- You plan to reside in a home owed before the marriage by you. In the absence of a prenuptial agreement which could provide to the contrary, even though your home was premarital, in the event of divorce your future spouse may be entitled at least to a portion of the increase in value of your pre-marital home as equitable distribution.
- You plan to reside in a home owed before the marriage by your future spouse. In the absence of a prenuptial agreement which could provide to the contrary, even though your home was premarital, in the event of divorce your future spouse may be entitled at least to a portion of the increase in value of your pre-marital home as equitable distribution. It is also possible to include in the agreement a provision obligating your future spouse to vacate the home in the event of divorce or separation agreement.
- Your right to spousal support from your first spouse ends if you get remarried. If you were receiving a substantial amount of spousal support under the terms of your first marriage, it may not be financially prudent to get remarried or even live with a new partner, as these are circumstances which could trigger a motion to terminate the alimony or maintenance you receive. A prenuptial agreement can address how you and your future spouse will pay for certain expenses in a way that will allows you to maintain the lifestyle you had following your first divorce and make it easier for you to move forward into your new relationship without fear of losing financial security. The pre-nuptial agreement can provide for similar alimony or maintenance payments to you by your future spouse in the event of a divorce or separation event.
- You have obligations to pay alimony or maintenance to an ex-spouse and you want to make sure that you will be able to satisfy your ongoing obligations in the unfortunate event that your future marriage will end in divorce. In addition, your will want to protect your future spouse’s income and assets from possibly being utilized to satisfy your alimony or maintenance obligations;
- You plan to leave a large majority of your estate to your children or someone other than your future spouse and you do not want to endanger that possibility by having the assets diverted to your new spouse instead, through divorce or in t he event of your death. Under the laws of all states, a current spouse is entitled to most or to all of your property if you die without a will. Even if you have a will, your spouse may be entitled to no less than a specified percentage of your estate, which in New Jersey is one third, unless he or she formally waives such entitlement. A prenuptial agreement can address this contingency and give you peace of mind.
If any of these examples resonate and describe your or your future spouse’s concerns, you should consider a prenuptial agreement. Once you get past the natural reluctance to breach the topic, you may well find that it will be a stress reducer and will give both of you peace of mind.
In New Jersey, the changed law requires that courts evaluate the enforceability of prenuptial agreements as of the date of their signing, not as of the date when enforcement is sought, which is typically years after execution. Before the new law was enacted, it was the case that such contracts would be found unconscionable if their enforcement would leave one spouse without means of reasonable financial support. This is no longer the case and enforceability is now easier than ever before.
Nevertheless, substantial care must be devoted to the preparation, negotiation and execution of prenuptial agreements. Unless all legal prerequisites are met, the agreement may be invalidated by the court years after it was made.
We stand ready to advise and guide you with respect to any marital or relationship agreements, including prenuptial agreements, postnuptial (or mid-marriage) agreements, reconciliation agreements, cohabitation agreements or palimony agreements.
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