A Prenuptial Agreement is a written agreement in which the parties may mutually stipulate as to the spousal support and/or the equitable distribution of assets in the event of a divorce. These agreements are gaining in popularity and frequency because it is the parties themselves, and not a judge, who decides upon the terms. The parties agree between them to the terms of asset allocation and support, if the need ever arises, rather than subsequently turning total control of these issues over to a court to decide in divorce litigation.
These agreements are each unique to the circumstances of each couple. For this reason, no two prenuptial agreements are exactly alike, as no two individuals are exactly alike. Some may come into the marriage possessing vast assets or contemplating the post‑marriage acquisition of vast assets. Some may enter the marriage with little assets and/or with no plans for gainful employment or career development. Some may have advanced education prior to the marriage, others may be planning on obtaining higher degrees once they are married. Each couples' agreement will have unique terms that address each of their individual and joint concerns.
A Prenuptial Agreement is a legally binding contract in New Jersey when it is properly drafted and when its terms and formalities are in compliance with New Jersey law, N.J. Stat. § 37:2‑31. Prenuptial Agreements must be completed before the parties were married or joined in Civil Union. The New Jersey law defines the steps that must be taken for the agreement to be enforceable.
Family law courts encourage such prenuptial agreements at least to the extent the agreements are responsive to parties’ particular circumstances. There is much colloquial ironic humor that the same bride or groom who was abhorrent about signing a prenuptial agreement before her/his first marriage, insisted upon one prior to entering the second marriage.
Parties may not use the same attorney to advise them as to the drafting of the agreement, and the statute § 37:2‑38 specifically requires that each party consult with independent legal counsel or else voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Under the Uniform Premarital and Pre‑Civil Union Agreement Act, some of the formalities
are that a pre‑marital or pre‑civil union agreement shall be in writing, with a statement of assets annexed thereto, signed by both parties.
§ 37:2‑34 states: Contents of premarital or pre‑civil union agreement:
Parties to a premarital or pre‑civil union agreement may contract with respect to:
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, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;
d. The modification or elimination of spousal or one partner in a civil union couple 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 a life insurance policy;
g. The choice of law governing the construction of the agreement; and
h. Any other matter, including their personal rights and obligations, not in violation of public policy.
The statute also states as to Child Support:
§ 37:2‑35. Premarital or pre‑civil union agreement not to adversely affect right of child support
A premarital or pre‑civil union agreement shall not adversely affect the right of a child to support.
Contact our office today at 201 599-9600 if you are contemplating have a Prenuptial Agreement.
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