In 1988, New Jersey joined with other states in passing the Uniform Premarital Agreement Act. The purpose of the act was and still is simply to govern the law of Prenuptial Agreements (i.e. prenups). Since our state adopted the act, the amount of prenups drafted has steadily increased. At the Law Offices of Edward R. Weinstein, we are here to help ensure safety of your assets upon a divorce by assisting you in understanding the value of entering into a prenuptial agreement.
What is a premarital agreement? 37:2-32
A prenup is an agreement between potential spouses made in consideration of marriage and effective upon the marriage itself. The subject matter of a prenup usually varies from agreement to agreement; however, it is extremely common that the agreement will include provisions for division of property and child/spousal support in the event of a divorce. The purpose of entering into a prenup before marriage is to ensure that whatever assets you enter the marriage with; you also leave the marriage with.
What formalities are required when drafting a premarital agreement? 37:2-33
When drafting a prenup, the agreement must be documented in writing. If terms and conditions of the prenup are only verbally agreed upon, they are considered invalid. In addition to the prenup agreement itself, a statement of each spouse’s assets must be attached prior to the marriage to ensure that those assets remain with the respective spouse. Another required formality of a is that both spouses must sign the agreement and the agreement must have attached to it a list of both parties assets and liabilities. prior to the marriage. If the agreement is not signed in writing by each spouse, it is considered invalid and unenforceable. Both parties are highly advised to have New Jersey Family Lawyers and the Agreement should be finalized as far before the actual wedding date as possible.
What are the contents that go into a premarital agreement? 37:2-34
Pursuant to section 34 of the Uniform Premarital Agreement Act, spouses about to enter into a prenup may contract with respect to 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 right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security 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.
Will entering into a premarital agreement affect the right of child support? 37:2-35
If you and your spouse decide to enter into a prenup, the agreement will not adversely affect the right of child support should you file for a divorce.
When does the premarital agreement become effective? 37:2-36
A premarital agreement becomes effective as soon as you and your spouse are legally married.
Can my spouse and I make changes to our premarital agreement once we are married? 37:2-37
Once you and your spouse are lawfully married, it is possible to amend your prenup. If you choose to make any changes, all changes must be recorded in writing. Additionally, each party must sign the amended agreement, acknowledging the new additions to the asset list or initial provisions.
When will a premarital agreement be unenforceable? 37:2-38
Pursuant to section 38 of the Uniform Premarital Agreement Act, a prenup agreement will be unenforceable if the party seeking to set aside the prenup proves one of the following:
1. The party executed the agreement unwillingly;
2. The agreement was unjust at the time the enforcement was sought; or
3. That party, before execution of the agreement:
a. Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
b. 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;
c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
d. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel
Additionally, if the marriage is found to be fraudulent or void for some other reason, the prenup agreement is only enforceable to the extent required to avoid an unjust outcome.