Prenuptial agreements are also called “prenups” or premarital agreements.A prenup is an agreement signed before a couple is married.
A postnuptial agreement (“postnup” or postmarital agreement) is signed after a couple is already married.
Both prenups and postnups often deal with issues such as how a couple’s property will be divided in the event of a divorce.The same issues generally apply to both prenups and postnups.In this article the use of the terms prenup or premarital agreement applies to postnups as well, except where specified.
New Jersey law defines a “premarital agreement” as:
An agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
In order to be effective, a premarital agreement must be in writing.Each party must make full and accurate disclosure of their assets, liabilities and income.
Parties to a prenuptial agreement may agree about issues such as:
- The rights and obligations of each parties with respect to their joint or separate property;
- Spousal support (alimony) upon separation or divorce;
- Making a will or trust or other document relating to the death of one or both parties;
- Ownership of death benefits from a life insurance policy;and
- Anything else that it’s not against public policy to agree on.
One thing that a prenup can’t do is adversely affect a parent’s right to child support.
A prenup becomes effective upon marriage.If a marriage turns out to be void (invalid) and is annulled, then a prenup will only be enforceable to the extent needed to avoid an inequitable (unfair) result.
A postnup becomes effective when signed, or on the date specified in the agreement.
Generally, a court will enforce a premarital agreement unless one party proves to the court that the agreement is unconscionable at the time when someone seeks to enforce it or that a party failed to disclose his or her assets, liabilities and income.
Grounds to set aside a prenup include:
- The party signed the agreement involuntarily;
- The agreement was unconscionable (unfair) at the time it was signed;
- Before she or he signed the agreement, one party:
- Was not given full and fair disclosure of the other party’s income, property, and assets;
- Did not voluntarily and expressly waive his or her right to additional financial information about the other party;
- Did not have, or could not have, adequate knowledge about the other party’s property or financial obligations;or
- Did not consult with independent legal counsel and did not voluntarily and expressly waive the right to consult with counsel.
New Jersey law on premarital agreements changed in 2013.Previously, the law said that a prenup would be judged based on whether it was unconscionable at the time enforcement was sought – that is, when the couple was breaking up.Now, whether the agreement is unfair is determined based on the circumstances when it was signed.
The change in the law means that a spouse who is sick, disabled, or otherwise unable to support himself or herself may be left without support if he or she has signed away his or right to alimony in a prenuptial agreement.
If you have questions about prenuptial and postnuptial agreements in New Jersey, please contact our office to arrange an appointment with an experienced Bergen County family law attorney at Chase & Chase.