Prenuptial
Agreements
The Three Most Frequently
Asked Questions About Prenuptial Agreements
- What Is A Prenuptial
Agreement?
- What Issues Can And Cannot Be
Addressed In A New Jersey Prenuptial Agreement?
- What Determines The
Enforceability Of A New Jersey Prenuptial Agreement?
1.
What Is A Prenuptial Agreement?
A prenuptial agreement (also called a premarital
agreement) is a written agreement which couples can enter into, prior to marriage, in
order to define each party's rights and obligations in the event of divorce. It becomes
effective upon their marriage.
2. What Issues Can And Cannot Be
Addressed In A New Jersey Prenuptial Agreement?
New Jersey prenuptial agreements are permitted to
address:
- 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;
- The right to buy, sell, use, transfer, exchange,
abandon, lease, consume, expend, assign, create a security interest in, mortgage,
encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation,
marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal
support;
- The making of a will, trust, or other arrangement
to carry out the provisions of the agreement;
- The ownership rights in and disposition of the
death benefit from a life insurance policy;
- The choice of law governing the construction of
the agreement; and
- Any other matter, including the parties’
personal rights and obligations, not in violation of public policy.
New Jersey prenuptial agreements are not
permitted to address the custody or support of children.
3. What
Determines The Enforceability Of A New Jersey Prenuptial Agreement?
If one party to a New Jersey prenuptial agreement
files an action challenging the enforceability of the agreement, the court will first
require that the non-challenging party prove that:
- the challenging party entered into the agreement
voluntarily;
- the challenging party had the opportunity to have
the agreement reviewed by an attorney of his/her choice; and
- the non-challenging party disclosed all of his/her
assets, liabilities and income.
If the non-challenging party can prove all of
those things, the only way that the court will refuse to enforce the New Jersey prenuptial
agreement is if the challenging party can prove that it is now "unconscionable"
to enforce it. A prenuptial agreement will be found to be unconscionable if:
- the challenging party is rendered without a means
of reasonable support;
- the challenging party becomes a public charge; or
- the challenging party's standard of living is far
below that enjoyed before the marriage.
To speak with a New Jersey Family Law Attorney,
call 973-455-1220. |
