In New Jersey, premarital agreements, which are also called “prenuptial” or “postnuptial” agreements in some states, are contracts made between prospective spouses in contemplation of marriage, which become effective upon marriage. The general purpose of premarital agreements is for prospective spouses to define, prior to marriage, their rights and obligations on financial issues such as the division of property or spousal support in the event they separate or divorce. If drafted properly, these agreements can save both spouses significant emotional and financial expenses if their marriage comes to an end. Premarital contracting also expedites 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.
The following issues can be addressed in a New Jersey premarital agreement:
Prospective spouses may not predetermine issues related to children which include child support payments and custody in their premarital agreements. These issues are typically decided by a court using a “best interests” standard. Also, as mentioned above, child related provisions in a premarital agreement would go against public policy because they are not dealing with the spouses but the child.
In 1988, New Jersey enacted its version of The Uniform Premarital Agreement Act (UPAA). The UPAA 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 spouses’ financial information. 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.
The spouse that's contesting the premarital agreement has the burden of proof and must show by clear and convincing evidence that either:
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.