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A Primer on Pre-Nuptial Agreements

The utilization of pre-nuptial agreements is expanding.  Fortunately, the law with regard to same is changing to make them more reliable with regard to their enforceability.

For many engaged couples, the idea of signing a prenuptial agreement is beyond contemplation, either because discussions about the potential of a prenuptial agreement are met with resistance or the individuals are too scared to broach the subject or because the couple is too in love to even consider the possibility of their marriage not lasting forever. For many engaged couples, however, the idea of signing a prenuptial agreement is acceptable, as many understand that the financial realities of a marriage, and potential divorce, are akin to a business arrangement that requires protection for both individuals.

Clearly, however, prenuptial agreements are a legitimate and real aspect of many marriages. In fact, many currently married couples have prenuptial agreements that were entered into prior to their marriage and which the couple believes will govern the financial aspects of their divorce, if they were to get a divorce. However, the realities of the enforceability of prenuptial agreements are often overlooked and not understood by couples who enter into them or, at times, decide not to enter into them. Recently, the law regarding the enforceability of prenuptial agreements in New Jersey was amended, which effects individuals who will be getting married in the future and are contemplating entering into a prenuptial agreement and may effect married couples who previously entered into a prenuptial agreement prior to the new law being enacted.

Until the new law went into effect, when I was broached about the idea of prenuptial agreements, I often cautioned clients and friends that they should understand that there really is no such thing as an ironclad prenuptial agreement and that, in my experience, I found that more often than not challenges to invalidate prenuptial agreements were successful. The reason for this was that, beyond the potential to successfully challenge prenuptial agreements under traditional methods of proving that (a) full financial disclosure was not made, (b) the prenuptial agreement was signed under duress or (c) the party challenging the prenuptial agreement was not given the opportunity to seek the independent advice of counsel before signing, prenuptial agreements in New Jersey could be invalidated if they were found to be unconscionable either at the time it was entered into or at the time it was to be enforced. Because one could not look into the future to know if the prenuptial agreement would be, essentially, fair at an unknown future date under unknown future financial and personal circumstances, there was no guarantee that a prenuptial agreement would be enforced at the time when its entire existence proved essential. However, the new law specifically addressed this concern, clearly removing from the inquiry whether the terms of the prenuptial agreement are fair at the time of enforcement, only requiring that, along with the above mentioned formalities and the requirement that it be in writing, the prenuptial agreement not be unconscionable at the time of signing.

Unfortunately, the law is only prospective, meaning that only prenuptial agreements entered into after its effective date of June 27, 2013 are governed by the new law. All prenuptial agreements entered into prior to that date are still subject to the old law. So what effect does the change in law have?

First, the new law should make individuals more secure in the belief that a fair prenuptial agreement will be enforced in the future, provided it was entered into subsequent to June 27, 2013. Second, the new statute provides for parties who entered into prenuptial agreements prior to June 27, 2013 to revise and amend their agreements, under certain procedures, and thereafter receive the protection of the new law. Therefore, it would be wise for individuals who currently have prenuptial agreements, executed prior to June 27, 2013, to engage the services of an attorney to have the prenuptial agreements reviewed and potentially revised and amended so that they can receive the increased protections of the new law as it relates to the enforceability of the agreement.

Visit the Miller & Gaudio Family Law webiste to learn more about having a pre-nuptial agreement drafted.

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