Prenuptial Agreements: What They Are, and How to Ensure They Are Enforced
It is important to enlist the expertise of a family lawyer when creating a prenuptial agreement that is fair, legal, and enforceable.
When wedding bells ring, a couple hopes that their marital bliss will last a lifetime. For many, this is the case. However, more and more, divorce – not death – is what parts a couple. In recent decades, prenuptial agreements, or ‘prenups,’ have become more common aspects of a couple’s wedding planning. Contrary to popular belief, this is not because a couple with a prenup believes that their marriage is going to fail. Rather, it is simply a legal contract into which a couple enters before joining in a civil union that creates specific controls to protect each person’s marital legal rights.
According to New Jersey divorce law, certain precedents are in place that determine how marital assets are divided in the case of separation – by death or divorce. They include such precedents as to how the estate is distributed, what rights a partner has to seek alimony, and how the entirety of marital assets will be divided. If a couple has signed a prenuptial agreement, these precedents are trumped in favor of the couple’s own legally binding contract.
There is a misconception that a couple who enters into a prenuptial agreement is not only destined for divorce, but they only care about money. This is certainly not the case, as a prenuptial agreement addresses many aspects of the union for which the couple would like to put agreements in writing, and speaks to separation in whatever form and time that may take place. This includes such consideration as to how marital assets will be separated amongst the children, who will get the pets, and how shared debt will be addressed. It’s important to remember that a marriage or civil union is a legal and business partnership. As such, a couple’s entry into a prenuptial agreement to outline clearly how financial and non-financial marital assets will be worked with, during the marriage and when death or divorce do they part, is a reasonable and often wise approach to the partnership.
How can I ensure that my prenuptial agreement is enforced?
As discussed, the terms of a divorce are adjusted to align with the agreements set forth in the prenup. This supersedence of New Jersey divorce law is one of the reasons for signing a prenuptial agreement before the wedding, and the terms addressed will take precedence in the case of a legal separation.
Now, it is not a legal requirement that a prenup be drawn up in the presence of attorneys. While drafting a prenup it is highly recommended that each partner has an attorney present supporting the process, but that is only suggestion. According to New Jersey law, a couple can jointly write, and both sign a prenuptial agreement and then submit it to the State. If one partner has an attorney and the other chooses not to, the couple would need only include a statement of acknowledgment and consent to not having an attorney.
After the wedding, how can a prenup be nullified or amended?
After the wedding, a prenup can be nullified or amended only with signatures from both partners. That said, either party can dispute the terms of the prenuptial document (this usually would not happen until the end of a union, though it has been known to happen before). If one or both sides disputes, a family law judge will review the agreement to determine whether it is enforceable. In order to be enforceable, all laws in the state in which the agreement was signed must have been followed fully. The judge will take into consideration such questions as whether all assets were fully disclosed in the original prenuptial or whether certain personal assets were hidden, whether the document was signed under duress or force, and whether the appropriate legal steps were taken to file the document in the appropriate courts. If any of these elements of review return evidence of an incomplete or falsified prenup, the document will be determined unenforceable, and common New Jersey divorce law will be upheld in all aspects of the divorce.
Prenuptial agreements are not ironclad, nor do they cover all aspects that will be taken into consideration in the case of separation. Where a prenup doesn’t address an element of separation, New Jersey divorce law will stand.
Consult a Union County NJ Prenup Attorney to Guide You Through the Process
At Law Office of Edward S. Cooper, our experienced team of family law attorneys supports clients across Rahway, Clark, Roselle, Roselle Park, Garwood, Elizabeth, and throughout Union County, Essex County, and northern Middlesex County in their marriage arrangements, including prenuptial agreements.