Here in Hoboken, I have seen a big increase in requests for Prenups. An essential element of any prenup is that both sides have legal representation. The courts will generally uphold the agreement unless one party did not have an attorney or if the agreement is considered unconscionable. It is very hard for a much poorer person to negotiate the terms of a prenup. Most, if not all, of my clients marrying into money start off their appointment stating in no uncertain terms “I don’t care about the money”. All I can say to that is to consider your situation 15 years down the line when your husband decides to trade you in for a younger model and you are confronted with a document that you signed years ago when you were young and naive. I have a problem with the Court upholding an agreement that was made so long ago an in such different circumstances but the fact is that the Court may very well find the agreement enforceable even though it is unfair.
On the other hand, if you have money and are marrying someone without any assets you should bring up the Prenup topic very soon after you have both agreed to marry. Since the law allows people to negotiate many terms of a divorce before the love has gone, it is important to take advantage of a law meant to protect your assets.
A premarital agreement or ante-nuptial agreement may be used by a couple to determine, prior to marriage, what each party’s rights and obligations will be in the event of divorce. Premarital Agreements are governed by the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et. seq. The agreement must be in writing and have a statement of assets attached to it. It becomes effective upon the marriage of the parties. The parties to a premarital agreement may negotiate about the following:
- 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 non-occurrence of any other event;
- The modification of 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 their personal rights and obligations, not in violation of public policy.
However, a premarital agreement cannot predetermine issues relating to children including child support, custody or parenting time. As to enforcement of premarital agreements, there is a three-pronged test that must be addressed by a court if the agreement is challenged:
- Was the agreement entered into voluntarily?
- Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
- Was there full disclosure as all assets, liabilities and income?
If these three items can be shown, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was “unconscionable” at time of enforcement, which shall be determined by the court as a matter of law.