Prenuptial Agreements

Prenuptial agreements are valid and enforceable; in fact, they should be welcomed and encouraged.  Marschall v. Marschall, 195 N.J. Super. 16 (Ch. Div. 1984). 

Parties to a premarital or pre-civil union agreement may contract with respect to:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:

             a. The party executed the agreement involuntarily; or

             b. (Deleted by amendment, P.L.2013, c. 72).

             c. The agreement was unconscionable when it was executed because that party, before execution of the agreement:

                         (1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;

                         (2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;

                         (3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or

                         (4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.

             d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.

Given the complexities involved with Prenuptial Agreements, we advise you to contact one of our experienced family law attorneys at 908-735-5161 at Gebhardt & Kiefer today.  We handle Prenuptial Agreements and family law issues throughout New Jersey.