It’s summer in New Jersey, and we all know what that means – it’s wedding season! Betrothed couples, madly in love, cannot possibly imagine the possibility that their marriage could turn sour. But as we have all heard, nearly half of all marriages end in divorce. Therefore, it may be smart for a couple approaching marriage in New Jersey to have a Prenuptial Agreement (or as it is commonly known, a Prenuptial Agreement or “Prenup.”)
One of the things that a Prenup can cover in New Jersey are a recitation of which assets are “premarital” (exist before the marriage) and how those assets will be treated during the marriage.
Even without a Prenup, those assets will not be distributable in the event of a divorce. However, what if those assets are added to during the marriage? Without a Prenup, the additions will be distributable. In a Prenup, the parties can agree that the party who adds to the asset during the marriage does not need to share the addition with his/her spouse in the event of a divorce in New Jersey.
Another common subject in a Prenuptial Agreement is alimony. In New Jersey, there is no formula for determining the amount and the duration of alimony. It is not uncommon for a Prenup to provide a fixed sum of money that one spouse will pay to the other spouse in the event of a divorce, depending on the number of years that they have been married before the termination of the marriage.
Two things which a Prenup cannot determine in New Jersey are child custody and child support. That is because those things are for the benefit of the children, and the parties cannot conclusively determine those things in advance of their marriage, if a New Jersey Family Court concludes that the parents’ determination is not in the best interests of the children.
Do you think that you want to challenge the enforceability of a New Jersey Premarital Agreement? You will need to show by clear and convincing evidence that you signed the Premarital Agreement involuntarily or that the Premarital Agreement was unconscionable when you signed it.
In order to prove that the Premarital Agreement was unconscionable when you signed it, you have to show that before you signed it, you:
- were not provided full and fair disclosure of your spouse’s earnings, property and financial obligations;
- did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of your spouse beyond the disclosure provided;
- did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of your spouse; or
- did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Many people believe that Prenups are looked at too negatively. They feel that when someone asks his/her significant other to sign a Prenup, it demonstrates a lack of faith that the marriage will succeed or a lack of trust in the significant other. This is not necessarily the case. Sometimes, it’s just better to be safe than sorry.
Salvaggio Law Group devotes its entire practice to New Jersey Family Law matters, including those related to Prenuptial Agreements. If you want to talk, please call us at 973-455-1220 or fill out the Contact Form on our firm’s website.