Prenuptial agreements are becoming more popular as baby boomers divorce and remarry late in life after significant assets have already been accumulated. A prenuptial agreement is especially useful if you have children from a prior marriage and assets that you want those children to inherit.
Under New Jersey law, a prenuptial agreement can address these issues:
- Property division and control
- Division of assets and investment accounts
- Ownership of a life insurance policy and the disposition of the death benefit
- Ownership of debts prior to marriage
- Choice of law governing the agreement
- Creation of a will and/or trust to fulfill the prenuptial agreement in the event of a spouse’s death
- Rights and responsibilities of both spouses in other personal matters that do not violate public policy
A prenuptial agreement cannot include provisions for child support or custody.
As the popularity of prenuptial agreements increase, so do challenges to the validity of those agreements in court. Here are ways a prenuptial agreement can be found invalid in New Jersey:
Improper execution. New Jersey law requires that prenuptial agreements be in writing and signed by both parties in the presence of a witness. It must also be notarized and executed prior to the marriage.
Deception. Hiding premarital assets will invalidate a prenup.
Duress. If one spouse was pressured into signing the agreement by physical, emotional, or financial threats, the agreement will likely be found not valid.
Lack of mental capacity. A prenuptial agreement can be voided if it is proven that one or both spouses signed it under the influence of drugs or alcohol, or otherwise lacked the mental capacity to give consent.
Execution timeline too short. If both parties signed the agreement too close to the wedding date without the proper amount of time for a thorough review, it could be invalidated.
No legal representation. Both parties must have their own separate legal counsel to avoid a conflict of interest, which could void the agreement.
Unconscionable provisions. Any provision that may strike a judge as unconscionable — i.e., terms that would cause financial hardship or conditions placed on a spouse’s appearance or behavior — may cause the entire agreement to be invalidated.
Prenuptial agreements may be eliminated or amended with the consent of both parties who must execute a second agreement that meets the same legal standards as the original agreement.
You can rely on Murphy & Cistaro to skillfully negotiate and mediate your issues to a satisfactory resolution. Should the need arise, you can also count on our experience for being aggressive litigators if the situation calls for a more assertive response. Contact us today for your free consultation.