Reviewed by Laurie L. Newmark, ESQ.
Key Takeaways
- New Jersey prenups are governed by the Uniform Premarital and Pre-Civil Union Agreement Act.
- A valid prenup must be in writing, signed by both parties, with a statement of assets attached.
- Notarization is not legally required, and no consideration is needed beyond the promise to marry.
- Since 2013, courts judge unconscionability at signing, not at divorce.
- A challenger must prove it unenforceable by clear and convincing evidence.
If you’re like most people, you believe in planning for the future. Unfortunately, we never know what life may throw our way next, so it’s important to always have a “Plan B” in place, so to speak. In today’s day and age, more and more young couples are recognizing this, and more and more couples find themselves drafting prenuptial agreements. Having a prenup in place is a great way to safeguard your hard-earned assets, should you ever get a divorce down the line. That being said, for a prenup to be considered valid and enforceable in New Jersey, it must first meet a wide range of criteria. Please continue reading and reach out to our dedicated marital agreement attorneys in Morris County, NJ to learn more. Here are some of the questions you may have:
What makes a prenup valid and enforceable in New Jersey?
In New Jersey, prenuptial 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 a prenup to be valid, it must be in writing, signed by both parties, include information about assets, and be enforced without consideration. A 2013 amendment allows judges to determine if the agreement was unconscionable at the time it was signed, not when the divorce takes place.
For a prenup to be considered valid and enforceable in the eyes of New Jersey law, it must meet the following qualifications:
- The prenuptial agreement must be fair and equitable to both parties
- Both parties must include full disclosure of their assets
- Each party must have had the opportunity to consult independent legal counsel, or have voluntarily and expressly waived that opportunity in writing.
- There must be no evidence of coercion or manipulation in signing the document
- Both parties must have had enough time to review the agreement before signing it
- The agreement must be executed before marriage
- The agreement must be in writing, signed by both parties, with a statement of assets annexed to it, under N.J.S.A. 37:2-33; notarization is not a statutory requirement, though it is common practice.
What Does the Statute Actually Require?
It’s important to understand that a considerable amount of online information related to prenuptial agreements blends good practice with legitimate legal requirements. As such, understanding what is legally required is critical to ensure that your agreement is legally valid in accordance with N.J.S.A. 37:2-33:
- In writing and signed: The agreement must be a written document signed by both parties. Oral prenuptial agreements are unenforceable in New Jersey.
- Statement of assets attached: A statement of each party’s assets must be attached to the agreement, which helps ensure full financial disclosure.
- No consideration needed: Unlike standard contracts, a prenuptial agreement can be enforced without separate consideration, as the promise to marry is enough.
- Effective upon marriage: The agreement will only be effective after the marriage or civil union.
How the 2013 Amendment Changed Enforceability
In 2013, an amendment to the Uniform Premarital and Pre-Civil Union Agreement Act considerably impacted how the courts review prenuptial agreements, which is why some information is outdated:
- Judged at signing, not at divorce: Courts determine the conscionability of the agreement at the date the agreement was signed, not at the time of the divorce. It’s important to understand that changed circumstances during the marriage typically no longer render a prenuptial agreement unenforceable.
- No court pre-approval: New Jersey does not review or approve prenuptial agreements when they are created. As such, the date of execution simply establishes a time the court will consider if the agreement is challenged during a divorce.
- Heavy burden to overturn: The spouse who challenges the agreement must prove that it is unenforceable through clear and convincing evidence, which can be a difficult standard to meet.
When Can a Prenup Be Set Aside?
In accordance with N.J.S.A. 37:2-38, a prenuptial agreement will be enforced only if the party challenging the agreement can prove, by clear and convincing evidence, one of the following:
- Involuntary execution: The party signed the prenuptial agreement involuntarily, such as being under duress or coercion.
- Lack of full disclosure: The party contesting the prenuptial agreement was not provided with a full or fair disclosure of the other party’s earnings, assets, or liabilities, and did not waive this lack of disclosure in writing.
- No adequate knowledge: The party challenging the agreement can show they did not and could not reasonably have had satisfactory knowledge of the finances of the other party.
- No chance to consult counsel: The party was not given the opportunity to consult independent legal counsel, and did not explicitly waive that opportunity in writing.
What can I outline in my prenuptial agreement?
Prenuptial agreements can have as broad a scope as you would like, except they cannot be used to decide on future child support or custody terms. Those must be decided at the time of the divorce. However, in a prenuptial agreement, you can:
- Outline who will get to keep certain assets, such as funds in bank accounts, a family business, vehicles, or personal possessions, like jewelry.
- Outline future alimony terms.
- Outline who will be responsible for paying off certain debts, such as student loans.
Contact Our New Jersey Divorce Firm Today
If you are already married, you can no longer draft a prenuptial agreement, but you can still draft a postnuptial agreement. A postnuptial agreement serves the same basic purpose as a prenuptial agreement, but a postnuptial agreement is executed solely after marriage. Regardless, if you are looking to establish a marital agreement, it is in your best interest to connect with an experienced attorney with Townsend, Tomaio, Newmark & Clancy, LLC. If you have any additional questions or want to speak with a dedicated family law attorney about drafting a prenuptial or postnuptial agreement, simply contact TTNC Law today. We are here to help.
