What to Know About Prenuptial Agreements in New Jersey

Key Takeaways

A prenup is a written contract signed before marriage, governed by New Jersey’s Uniform Premarital and Pre-Civil Union Agreement Act.
To be valid, it must be in writing, signed, and include a statement of assets; notarization is not required.
It can cover property, alimony, and estate matters, but never child custody or support.

When you and your partner get married, you join your lives together. This includes finances, assets, and debts. It is normal to want to protect yourself and feel secure going into this new stage of your life. One way to protect yourself and your assets is with a prenuptial agreement. Read on to learn more about prenuptial agreements in New Jersey.

What is a Prenuptial Agreement?

A prenuptial agreement is a written contract signed before marriage. It declares how a couple’s assets will be split in the event of death, divorce, or separation. In New Jersey, these agreements are governed in accordance with the Uniform Premarital and Pre-Civil Union Agreement Act (N.J.S.A. 37:2-31 et seq.). In order for the document to be valid, it must be:

In writing
Signed by both parties
Include a statement of assets
Both parties must have the opportunity to consult independent counsel before signing, though this opportunity may be waived in writing

It is important to understand that a prenuptial agreement does not need to be notarized, nor can these agreements include matters related to child custody or child support.

While a prenup deals with what happens at the end of a marriage, creating a prenup in no way indicates a future divorce or unstable relationship. Instead, prenuptial agreements allow you to get uncomfortable financial discussions out of the way early and leave both you and your spouse feeling protected as you enter this exciting new chapter of your lives.

What Can I Address in a Prenuptial Agreement?

Some things you may want to address in your prenuptial agreement may include:

Residences and real estate properties
Business assets
Investments, stocks, and bonds
Trusts
Amount, duration, or waiver of alimony

It is important to note that you cannot include things like child support or child custody in your prenup.

In accordance with N.J.S.A. 37:2-34, the categories that may be covered in a New Jersey prenuptial agreement are broad. They may include information related to the disposition of assets in the event of death or divorce, the making of a will or trust to execute the agreement, ownership and distributions of a life insurance death benefit, and even which state’s laws will govern the agreement. As mentioned, however, a prenuptial agreement cannot contain terms that will negatively impact a child’s right to support.

What Makes a Prenup Valid?

Because a prenuptial agreement is an important legal document, there are certain requirements that must be met in order for the document to be considered valid. In New Jersey, your prenup will only be considered valid if both parties:

Have the opportunity to independently consult legal counsel, which may be voluntarily waived in writing, rather than being legally required to retain counsel
Disclose all of their assets
Voluntarily enter into the prenuptial agreement
Be provided with adequate time to evaluate all of the terms of the agreement before signing

It is important to understand that, in accordance with N.J.S.A. 37:2-33, a valid prenuptial agreement must be in writing, signed by both parties, and a statement of assets must be attached. Prenuptial agreements do not have to be notarized. Additionally, under N.J.S.A. 37:2-38, the court reserves the right to deem a prenuptial agreement unenforceable only if the challenging party can prove, with clear and convincing evidence, that the agreement was signed involuntarily or was unconscionable at the time it was executed.

A 2013 amendment states that the unconscionability of the agreement must be measured based on the time it was established, not at the time of the divorce.

If your prenuptial agreement is not created and filed properly, it can be contested, which can lead to a lot of legal trouble.

What Are the Benefits of a Prenuptial Agreement?

Beyond the legal protections a prenuptial agreement can offer, couples often choose to establish prenuptial agreements for several important reasons:

Protecting separate property: A prenuptial agreement can help keep separate property from becoming marital property and therefore subject to equitable distribution, even if the other spouse contributed to the asset, otherwise giving it marital character.
Reducing the cost and conflict of a divorce: By determining how assets would be handled in the event of a divorce, establishing this agreement can help resolve many issues often contested in divorce. This can ultimately shorten and reduce the costs of the divorce process.
Encouraging financial transparency: Drafting a prenup requires an open conversation about finances before marriage, which many couples find strengthens rather than strains the relationship.

Who Should Consider a Prenuptial Agreement?

Prenuptial agreements can benefit many couples, but it may be especially worth considering when:

You own a business or anticipate a considerable inheritance or trust fund
Have considerably greater assets, income, or debts than your future spouse
Were married before or have children from a prior marriage

Common Myths About Prenuptial Agreements

Unfortunately, prenuptial agreements often carry a stigma that is not supported by law. As such, these agreements often carry misconceptions, including:

“A prenup means the marriage will fail.” It is simply financial planning; having one says nothing about the strength of a relationship.
“Prenups are only for the wealthy.” Anyone with assets, debts, or a business to protect can benefit, regardless of net worth.
“A prenup won’t hold up anyway.” A prenup that meets the statutory requirements is enforceable and is difficult to overturn once properly made.

Can I Get a Prenup if I am Already Married?

“Prenuptial” means it was created before the marriage. While you cannot get a prenuptial agreement after your wedding, you can create a postnuptial agreement. A postnuptial agreement serves a similar purpose but is created during the marriage.

It is critical to understand that, despite their similarities, postnuptial agreements are not the same under New Jersey Law. These agreements are not governed by the premarital agreement statute and are instead reviewed by case-law standards rather than legal statutes.

If you have any questions or concerns regarding prenuptial or postnuptial agreements in New Jersey, contact our firm today. We are here to walk you through all of your family law matters, every step of the way.