A Prenuptial Agreement or Prenuptial Agreement is a contract between two prospective parties that are planning to be married. The agreement becomes effective upon marriage. Prenuptial Agreements are a way for both parties to determine how their property and assets can be managed ahead of time, if the marriage ends in divorce or death of a spouse. Before entering into a Prenuptial Agreement, it is important that both parties consult with a separate licensed attorney(Monmouth County Prenup Attorney)) to review the Agreement in order to ensure the Agreement is fair and enforceable.
What is the UPAA/UPMAA?
In 1983, the Uniform Premarital Act was drafted with hopes to promote uniformity and continuity of the enforcement of Prenuptial Agreements (Prenuptial Agreements, Antenuptial Agreements) across the States. In 2012, it was revised and called the Uniform Premarital and Marital Agreements Act. Currently, twenty-eight (28) States have adopted one of these standards.
New Jersey enacted its own version of UPAA standards in 1988. They can be found under Section 37:2-36 of the Revised Married Persons Statutes
Who might benefit from a Prenuptial Agreement in Monmouth County?
Prenuptial Agreements are not just for wealthy individuals entering into marriage. Couples who might consider getting a Prenuptial Agreement have diverse backgrounds and situations. Having a Prenuptial Agreement can ensure that assets and property are divided the way the couple intends, rather than leaving the decision to the courts. New Jersey is an “equitable distribution” state, and the courts decide what is “equal” between parties in the event of divorce rather than just splitting assets evenly between parties.. The courts, however,tend to honor a Prenuptial Agreement if one has been written. Couples who have previously been married, have children from a previous relationship, and/or have separate property or businesses may benefit from a Prenuptial Agreement.
“Choice of Law”
A consideration to keep in mind is residency. Because New Jersey is one of the UPAA/UPMAA states, it is generally enforceable in other states that follow UPAA/UPMAA standards. , it is important to consider where you plan on residing in the future. A Prenuptial Agreement signed in New Jersey is enforceable outside of the State if you move after marriage if it is a UPAA/UPMAA StateHowever, if it is NOT one of the UPAA/UPMAA states, it may not be enforceable. . If you think you may plan to move outside of New Jersey after marriage it is important that you consult with an attorney in the potential state or states you may reside in and draft a Prenuptial Agreement that has provisions that also conform to that State’s requirements.
What Can A Prenuptial Agreement Contain?
A Prenuptial Agreement can specify what happens to property and assets in the event of death of a spouse, or divorce. In New Jersey, an agreement can specify, for example:
- Maintaining separate property
- Responsibility of separate debt
- Maintaining separate income
- Retaining inheritance and gifts
- Determining the division of future earnings, assets, investments, property (marital property)
- Waiving certain rights (i.e. inheritance, will, alimony)
All of this planned beforehand can save time and money rather than leaving it to the courts to decide.
What Makes A Prenuptial Agreement Enforceable in Monmouth County?
In New Jersey, Prenuptial Agreements are governed by New Jersey Section 32-36 of the Revised Married Persons Statute following the UPAA/UPMAA Guidelines.. In order for an Agreement to be enforceable must be enacted before marriage or a Civil Unioni. The agreement also must be in writing and signed by both parties and notarized in the State of New Jersey. THe agreement must be signed voluntarily, and both parties must attach a full disclosure of all assets and debts (full financial disclosure).
.Although it is not required in New Jersey, it is highly recommended that both parties It is recommended that the Prenuptial Agreement be reviewed with separate attorneys to prevent conflict of interest. This all should be done within leaving a “reasonable” amount of time before the wedding so there is no later recourse for one member of the party to claim that he or she signed under duress, or was coerced into signing the agreement.
What Makes a Prenuptial Agreement Unenforceable?
A Prenuptial Agreement is unenforceable in New Jersey if it includes provisions that violate New Jersey Law. Agreements are also unenforceable if they include incentives for divorce, are deceptive in nature, or have unfair clauses. Unfair clauses are those, for example, that put demands on one party to get cosmetic surgery, or lose weight.Prenuptial Agreements in New Jersey may not include provisions for child custody and child support.
Notable Cases in New Jersey with regards to Prenuptial Agreements
DeLorean V. DeLorean-Multi-State case “enforceable”
Mr. and Mrs. DeLorean had signed a Prenuptial Agreement shortly before marriage. Mr. Delorean was a man of considerable wealth. Their agreement held provisions for each to retain separate property and keep separate assets throughout their marriage. At the time of their divorce, Mr. DeLorean was worth about twenty times, Mrs. Delorean’s net worth. She challenged the enforceability of the Agreement. The courts found that the agreement was enforceable, even though it included property owned in multiple states under those state laws as well, because Mrs. Delorean had signed the agreement willfully, had consulted with an attorney, and had been advised of Mr. Delorean’s finances at the time of their marriage.
Massar v. Massar, 652 A. 2d 219 – NJ: Appellate Div. 1995-Enforceable when it “does not violate public policy”
In New Jersey, there is an eighteen-month (18) separation period before a couple can file for divorce. There are also two types of divorce, “At-Fault”, and “No-Fault”. With “At-Fault”, one person can allege the other committed a violation of public policy and essentially get the Prenuptial Agreement voided if there was some act of cruelty. In this case Mrs. Masser filed for divorce and alleged there was extreme cruelty and Mr. Masser moved out. She tried to get the Prenuptial Agreement invalidated but could not prove her claim of Extreme Cruelty eventually changing the filing to “No-Fault” divorce. The courts ruled that “extreme cruelty did not violate the intent of the agreement” and that “public policy did not prohibit such agreements”.
Marschall v. Marschall, 477 A. 2d 833 – NJ: Superior Court, Chancery Div. 1984– Ramifications when there is not “full disclosure”
Mr. and Mrs. Marshall had each been previously married and had prior grown children when they decided to wed in their late 60s. They had signed a Prenuptial Agreement that had provisions for them to keep separate property and income, but Mr. Marshall had not been completely forthcoming about his finances. When the couple later divorced, Mrs. Marshall was able to prove that she was unaware of his net worth and income, and was able to collect alimony for life.. BUT, if at any time Mr. Marshall could prove that she was aware, he could take her back to court and she would have to repay.
New Jersey Terms and Statutes
- Divorce: There are two types of divorce in New Jersey, “no-fault” and “at-fault” divorce. “No-fault” divorce is based on irreconcilable differences, and the inability to repair the marriage, while in “at fault” divorce, one party must prove the other party committed an act such as adultery, abandonment, or abuse. In most cases, “at-fault” divorce cases are more costly and time consuming.
- Marital Property is the debts and assets acquired by a couple beginning at the time of marriage. In New Jersey this is both Real Property and Separate Property acquired. Because New Jersey is an “equitable distribution” State, fairness is a factor, not “equal shares” when dividing property. The court takes into consideration the following factors:
- Length of Marriage
- Emotional and Physical Health
- Standard of Living
- Debts, liabilities, and Assets
- Financial Contributions
- Earning Capacity
- Prenuptial Agreement
- Non-Marital Property or Separate Property individual property. In New Jersey, some separate property may become marital property if proper steps are not taken to ensure the property remains separate, such as drafting a Prenuptial Agreement.
- Alimony is an amount of money ordered by the courts from one spouse to pay the other spouse. The amount and duration of alimony is typically determined by several factors such as the income of the higher-earning spouse, the length of the marriage, and the earning potential of the spouse receiving alimony.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].