New Jersey Premarital (Prenuptial) Agreements

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.

What Issues Are Addressed in New Jersey Premarital Agreements?

The following issues can be addressed in a New Jersey premarital agreement:

• both spouses' rights and obligations to joint and separate property, whenever and wherever acquired or located
• the right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of or 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, and
• any other matter, including personal rights and obligations, as long as it's not in violation of public policy.

What Are the 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 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.

What are New Jersey's Requirements for a Valid Premarital Agreement?

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.

How Can Premarital Agreements Be Challenged?

The spouse that's contesting the premarital agreement has the burden of proof and must show by clear and convincing evidence that either:

• he or she executed the agreement involuntarily
• the agreement was unconscionable at the time it was signed
• before the signing of the agreement, he or she was not provided with a full and fair disclosure of the earnings, property and financial obligations of other spouse
• 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 have, or reasonably could not have had, adequate knowledge of the property or financial obligation of the other spouse, or
• before signing, he or she did not consult with independent counsel 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.