An article in the New Jersey Law Journal recently reported that the New Jersey State Senate passed a new
bill, S-2151, which would make it much more difficult in a New Jersey divorce case to nullify a Premarital Agreement (commonly known as a Prenuptial Agreement).
The bill also applies to such Agreements when they are entered into prior to civil unions (Pre-Civil Union Agreements).
Under current law, when one of the spouses challenges the enforceability of a Prenuptial Agreement in a New Jersey divorce case, the court must first determine whether: (1) the challenging party voluntarily entered into the Prenuptial Agreement; (2) the challenging party had the opportunity to have the Prenuptial Agreement reviewed by the attorney of his/her choice; and (3) the other party disclosed all of his/her assets, liabilities and income.
Even if all of those conditions are satisfied, the challenging party can still nullify the Prenuptial Agreement in a New Jersey divorce case if he/she can prove by clear and convincing evidence that,at the time the challenge is made, it would be “unconscionable” to enforce the Agreement. To meet that burden of proof, the challenging party must show that either that he/she: (1)is left without a means of reasonable support; (2) will become a ward of the state; or (3) will have a standard of living far below what he/she enjoyed during the marriage.
The new bill passed by the New Jersey State Senate makes two fundamental changes.
First, as long as the challenging party cannot demonstrate that he/she signed the Prenuptial Agreement involuntarily, the challenging party must show by clear and convincing evidence that the Prenuptial Agreement was unconscionable at the time that the parties signed the Agreement. This change thus would eliminate the opportunity for the challenging party to show that his/her circumstances have drastically changed since the signing of the Agreement.
The bill also changes the definition of “unconscionable,” to now require the challenging party show that he/she: (1) was not provided full financial disclosure; (2) 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; (3) did not have or could not reasonably have had adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
If the bill is then passed by the New Jersey Assembly and becomes law, it will apply to all Prenuptial and Pre-Civil Union Agreements which have not been the subject of an enforcement proceeding filed with a New Jersey Family Court as of the date the bill is passed. Therefore, anyone with an existing Prenuptial or Pre-Civil Union Agreement will have that Agreement evaluated by this new standard if the Complaint for Divorce is filed after the bill is signed into law.
Salvaggio Law Group LLC devotes its entire practice to New Jersey Divorce and Family Law matters, including the preparation and enforceability of Prenuptial Agreements.
If you want to talk, please call us at (973) 455-1220 or fill out the Contact Form on our website.