Arons and Solomon | June 25, 2019 | Articles
A prenuptial agreement is a legally binding contract between two eventual spouses that becomes effective after marriage to each other. There are many reasons to have a prenuptial agreement.
Some individuals might want to protect business or personal assets obtained before the relationship, or a large expected inheritance. Others may be concerned about protecting the financial well-being of children from a prior marriage.
According to the Uniform Premarital and Pre-Civil Union Agreement Act (N.J.S.A. 37:2-31 et seq.), a prenuptial agreement can address the following issues:
- Alimony (aka spousal support)
- Choice of law governing the agreement
- Creation of a will and/or trust to carry out the premarital agreement in the event of death
- Division and control of property
- Divisions of assets and investment accounts
- Ownership and disposition of the death benefit from a life insurance policy
- Ownership of premarital debts (mortgages, student loans, credit cards, etc.)
- Rights and responsibilities of both parties in other personal matters, if they do not violate public policy
Under New Jersey law, a prenuptial agreement cannot include provisions which adversely affect the rights of a child, such as support or custody.
While the subject can be a little awkward to discuss, the taboo surrounding the idea of a prenuptial agreement is gone. Prenuptial agreements have grown in popularity among engaged couples. Challenging the validity of those agreements in court has become more common too.
Below are 8 ways that a prenuptial agreement might be found invalid by a court in the State of New Jersey:
1) The paperwork was not properly signed, witnessed, etc.
Prenups need to be written, signed by both parties, each in the presence of an appropriate witness, notarized, and executed prior to the wedding.
2) The agreement is deceptive
A valid prenuptial agreement requires complete financial disclosures. If there is evidence that one party was hiding premarital assets, or lied about the value of their premarital assets, a judge may rule to invalidate the agreement.
3) The agreement was signed under duress
If a party was forced to sign the agreement under threat of physical, financial, emotional, or any other type of pressure, the agreement is likely not valid. The burden of proof is on the alleged victim to provide evidence of the coercion. The signing of the agreement is often videotaped to prevent future allegations of duress.
4) One or both parties lacked the mental capacity to consent
A prenuptial agreement may be rendered void if it can be proven one or both parties signed the agreement while under the influence of alcohol or drugs, or otherwise did not have the mental capacity to render consent.
5) The agreement was signed too close to the wedding date
If one or both parties did not have enough time to thoroughly review the contents of the agreement before signing, the judge may rule to invalidate the agreement.
6) The agreement was signed without legal counsel
Both parties must be represented by their own separate legal counsel. If both parties attempt to “share” the same lawyer, it presents a clear conflict of interest and may provide future grounds to void the agreement entirely. If one party refuses to hire a lawyer, they must sign a statement explicitly stating they were urged to seek legal counsel but chose not to do so.
7) One-sided, ridiculous, or otherwise unconscionable provisions in the prenup
If a judge believes the terms of the prenup are unconscionable, the agreement may be rendered invalid at his/her discretion. This can include (but is not limited to) terms causing unnecessary financial hardship, and conditions involving sexual acts, appearance, weight gain/loss, or other private behaviors.
8) Amend or eliminate the prenup with the consent of both parties
Prenuptial agreements can be amended after the marriage to reflect changes in life circumstances. To do so, both parties must sign a second agreement that is subjected to the same legal and ethical standards of an original prenuptial agreement.
Hire a New Jersey Divorce Lawyer
The Arons & Solomon team holds decades of experience in drafting, reviewing, and litigating the validity of prenuptial agreements. We will make sure your prenuptial agreement is fully compliant under NJ state law and protects your best interests.