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PreMarital Agreements in New Jersey

PREMARITAL AGREEMENTS

UNDER NEW JERSEY LAW

                                                                                by

Donald S. Waskover, Esq.

A premarital agreement (also known as a prenuptial agreement) is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. These agreements can also be utilized by parties to a civil union.

A premarital agreement must be in writing, have a statement of assets attached and be signed by both parties.

PURPOSES AND CONTENTS

A premarital agreement can not adversely affect the right of a child to support.The purpose of a premarital agreement is to define a prospective spouse’s financial rights and obligations with their intended spouse during the marriage, upon the death of either spouse and in the event of an end to the relationship through separation and/or divorce. Premarital agreements contain provisions dealing with the following:

a. 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;

b. 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;

c. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

d .The modification or elimination of spousal support;

e .The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from life insurance policies;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including personal rights and obligations, not in violation of public policy.

VALIDITY

A premarital agreement is presumed to be valid and enforceable. The burden of proof to set aside a premarital agreement is upon the party alleging the agreement to be unenforceable.



If the agreement was entered into prior to June 27, 2013, the party seeking to set aside the agreement must prove, by clear and convincing evidence, that:

    a. The party executed the agreement involuntarily; or

    b. The agreement was unconscionable at the time enforcement is sought (Unconscionable means, either due to a lack of property or unemployability, the terms of the agreement would render a spouse without a means of reasonable support, would make a spouse a public charge or would provide a standard of living far below that which was enjoyed before the marriage); or

    c. That party, before execution of the agreement:

        (1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

        (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

        (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

        (4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.



If the agreement was entered into or modified after June 27, 2013, the party seeking to set aside the agreement must prove, by clear and convincing evidence, that:

    a. The party executed the agreement involuntarily; or

    b. The agreement was unconscionable when it was executed because that party, before execution of the agreement:

        (1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the
              other party;

        (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

        (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

        (4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

The issue of unconscionability of a premarital agreement is deterined by the court as a matter of law.


Donald S. Waskover, Esq.
Fort Lee, New Jersey 07024
Phone: 201-262-8888
Fax: 201-266-0503
Email: waskover@newjerseydivorcelawyer.net
website: newjerseydivorcelawyer.net