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New Jersey Prenuptial Agreements
What is a prenuptial agreement?
A prenuptial agreement is also known as premarital agreement or an antenuptial agreement. This type of 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 it must have a statement of assets attached to it. It becomes effective upon the marriage of the parties.
Premarital agreements are entered into by prospective husbands and wives before they get married. If a premarital agreement is properly drafted, then they can save the parties significant emotional and financial expense if they get divorced.
What marital terms can be negotiated in a premarital agreement?
The parties to a premarital agreement may negotiate about the following areas:
However, a premarital agreement cannot predetermine issues relating to children including child support, custody or parenting time.
What martial terms can't be included in a premarital agreement?
A premarital agreement cannot limit any child support or any other types of financial support for a child. This includes costs to maintain health insurance or life insurance. Moreover, a premarital agreement can't stipulate which party should have custody of any child born of the marriage.
Child support provisions are governed by different rules that take into account a child's needs and best interests and the state's concern as to the welfare of children. Waivers of child support are invalid. Agreements as to child custody and visitation will not be upheld because as the welfare of the child born after marriage will override.
What is the standard of law that a court uses to ascertain if a prenuptial agreement is legally binding?
As to enforcement of premarital agreements, there is a three-pronged test that must be addressed by a court if the agreement is challenged:
If these three prongs can be proven, 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.
What are the reasons why a prenuptial agreement may be declared invalid?
What are the essential requirements that must be satisfied in order for a premarital agreement to be upheld?
When should a premarital agreement be signed?
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. It simply does not make sense to try to put together a premarital agreement on short notice and hope that if is ever challenged that it will survive.
White six to eight weeks would be optimum, this does not mean to suggest that an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it would not be unreasonable to state in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in anyway affect their ability to freely and voluntarily entered into the agreement or cause them to do so under any coercion, duress or undue pressure.
Can a premarital agreement be signed after the wedding?
A premarital agreement can be made after the wedding whenever differences arise between the parties regarding the future financial issues. This type of agreement is often called a postnuptial agreement. A postnuptial agreement must be based upon some consideration other than the marriage itself. Sometimes a postnuptial is made as part of a reconciliation of the parties or following some other dispute. A postnuptial has been held to be just as enforceable as a premarital Agreement.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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