Should Both Parties Retain Their Own Attorney For A Prenuptial Agreement?

Should Both Parties Retain Their Own Attorney For A Prenuptial Agreement?

Yes. In order for a prenuptial agreement to be held valid by a judge of a New Jersey Family Court, both spouses should be represented by their own attorney before entering into the agreement. Otherwise it may be deemed invalid. Under New Jersey law, prenuptial agreements have specific requirements in order for the agreement to withstand the scrutiny of a judge of the Family Part of the Superior Court of New Jersey if it were ever contested. The lawyers at our law firm located in East Brunswick, New Jersey, understand that the prenuptial agreement must contain full disclosure of all assets by both spouses, for example. Furthermore, if one spouse did not have an attorney at least review the prenuptial agreement, it may very well be vacated if a divorce occurs.

In Dobre v. Dobre, the parties met in 2003. In either 1999 or 2001, the husband came to the United States from Croatia. The husband's first language was Serbian, but he could read and write in English so the parties were able to communicate in both languages. The husband first came to the United States under a six-month tourist visa, but then obtained a media visa. Eventually, the husband obtained a green card after marrying the wife. The parties married in 2004 and had three children born of the marriage.

The wife filed for divorce in March 2013. The wife sought child support, joint legal and physical custody of the parties' children, and equitable distribution. The wife also sought to incorporate the parties' prenuptial agreement into the judgment of divorce. The husband, in his answer, sought to invalidate the prenuptial agreement. The trial began in February 2015 and ended in April 2015. The Superior Court of New Jersey Family Part issued a written decision in July 2015 and entered the judgment of divorce on October 13, 2015. During the trial, the trial judge set aside the parties' prenuptial agreement. The wife filed a motion with the court for reconsideration in August 2015, and the husband filed a cross-motion for reconsideration. On November 6, 2015, the trial judge issued an order awarding the husband's counsel attorney's fees. The wife then filed an appeal and the husband cross-appealed.

On December 3, 2015, after a hearing, the court issued two orders in favor of the husband. The court ordered the wife to pay the husband's attorney for attorney's fees and $300,459 in equitable distribution. The wife filed a motion to correct an error in the order granting the husband attorney's fees on April 8, 2016. The trial judge found that he was incorrect because the order granted the husband's attorney, not the husband, attorney's fees; however, the trial judge lacked jurisdiction to fix the error.

On appeal, the wife claimed that the trial court was wrong to invalidate the parties' prenuptial agreement. She also challenged the judge's decisions regarding child support, equitable distribution, and attorney's fees as well as the judge's requirement that she make the equitable distribution and attorney's fees payment to the husband immediately. On his cross-appeal, the husband claimed the court was wrong by not adopting his parenting plan. The New Jersey Appellate Division stated that the trial court's ruling cannot be overturned when it is supported by substantial and credible evidence. Furthermore, the Appellate Division explained that it gives great deference to the trial court because the trial court has special expertise in family matters. The court also explained that the trial court has extensive discretion to distribute marital assets subject to division, and that the Appellate Division will agree with the trial court's division of assets when the trial court's decision is supported by evidence, and legally and factually sound.

The first issue on appeal was the parties' prenuptial agreement. The wife testified that the husband moved to the United States in 1999 but the husband stated that he came to the United States in 2001. The wife also testified that she required the husband to sign a prenuptial agreement before the parties' married because she was unsure if the husband was marrying her for love or for citizenship. She stated that she told the husband that she wanted to keep the gifts given to her by her mother and that the husband said he was okay with that. The wife owned several properties before marrying the husband, including two properties in Totowa, New Jersey. The wife bought the Battle Ridge Trial property with her first husband, but bought his share of the property when they divorced in 2002. The wife's mother bought the Francis Street property and transferred the property to the wife in 2003. The wife stated that the parties discussed the properties and that the wife met with an attorney to prepare the prenuptial agreement, which stated that the each party would keep gifts that are in their own name and that there would be no equitable distribution. The prenuptial agreement also stated that each party was represented by an attorney, but does not list attorney names. The wife stated that she believed the husband hired his immigration attorney to consult on the prenuptial agreement, and that both parties signed the prenuptial agreement on July 6, 2004.

The husband stated that he was not aware that he was signing a prenuptial agreement because the wife told him that the paperwork was for life insurance. The husband also testified that there were no witnesses or notary present, and that a notary stamp was already on the paperwork next to the wife's signature when the paperwork was given to him. The husband stated that the parties did not discuss the prenuptial agreement before the marriage and that he saw the document for the first time in his attorney's office during the divorce proceedings. The husband's attorney testified that he did not represent the husband during the prenuptial process, and that he only represented the husband for a few months regarding the husband's visa application. The attorney also stated that the husband did not discuss the prenuptial agreement with him and that the parties did not come to his office to sign the agreement in July 2004. Lastly, the husband testified that he did not employ anyone with the name indicated on the notary stamp on the document.

The Appellate Division explained that prenuptial agreements are valid and enforceable so long as there was full disclosure and no unconscionability. According to the statute, the party seeking to invalidate the agreement must prove that the agreement was entered into involuntarily or that the agreement is unconscionable. The statute also explains that a prenuptial agreement is unconscionable before the signing if a party was not given full disclosure, did not voluntarily waive disclosure of financials, did not have proper knowledge of assets, or did not consult with an independent attorney or waive that right. The Appellate Division stated that the trial judge's decision regarding the prenuptial agreement did not satisfy the rule because the judge did not explain his factual and legal findings; however, the Appellate Division retained jurisdiction over the matter. The Appellate Division agreed that the parties' prenuptial agreement was invalid.

The Appellate Division stated that the husband did not consult with an independent attorney before signing the agreement and that he did not waive his right to consult with an attorney. Additionally, the Appellate Division found that the wife could not recall important details regarding the signing of the agreement, and she offered no explanation as to why the husband did not receive copies of the documents attached to the agreement. The Appellate Division found that the husband was not given full disclosure of the parties' property and financial assets as required by the statute. The court ultimately affirmed the decision of the trial court, finding the agreement to be unconscionable, and invalidated the parties' prenuptial agreement.

The Appellate Division also decided the issues of equitable distribution, attorney's fees, and child support. The Appellate Division disagreed with the trial court regarding the Totowa properties. The Appellate Division found that the wife's mother intended for the properties to be gifts for the wife alone, demonstrated by the fact that the wife put the properties into LLCs where she was the only member. Additionally, the wife was the only controller of the properties indicating that the mother had given up her right to the properties. Although the husband argued that he put work into the properties in the form of physical labor, the Appellate Division agreed with the wife and reversed the decision of the trial court, finding that the properties were gifts from the wife's mother to the wife and were not subject to equitable distribution. The Appellate Division also found that the trial court did not abuse its discretion in awarding attorney's fees to the husband. The court found that the trial court considered the factors under the rule and determined that the wife was more able, financially, than the husband. The Appellate Division also found that the wife caused some of the husband's fees because she failed to produce vital information during proceedings; therefore, the Appellate Division affirmed the trial court's decision. Lastly, the Appellate Division affirmed the trial court's decision regarding child support because the trial court considered all relevant factors and the wife failed to demonstrate that the current child support award was not supporting the children. Ultimately, the Appellate Division reversed the trial court's decision regarding the wife's premarital properties, and affirmed the decision regarding the prenuptial agreement, attorney's fees, and child support.

Please contact the attorneys at our law firm if you have any questions about a potential or “finalized”prenuptial agreement.

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