Newly engaged individuals often wonder whether a prenuptial agreement is necessary or appropriate for them. Truly, anyone who is interested in entering into a prenuptial agreement should consider one. It is not a prerequisite to be wealthy in order to consider one. Some examples of those who may be particularly interested in entering into a prenuptial agreement are business owners, those entering into a second (or subsequent) marriage and those who expect to inherit or already have inherited monies from his or her family.
The Ins and Outs of Prenuptial Agreements
In New Jersey, prenuptial agreements are governed by the Uniform Premarital Agreement Act, N.J.S.A. 37:2-31 et seq. Prenuptial Agreements are open to any engaged couple that wishes to address the following issues
- The future division of assets upon a separation event;
- Estate rights;
- Ownership and property rights as to property acquired during the marriage in joint name and in individual names;
- Any other issue they wish to address that does not go against public policy*
* It is important to note that couples can never address issues related to children, including custody and child support, in a prenuptial agreement because that is void under public policy. Meaning, Courts are required to protect children’s best interests, and children cannot be contracted for.
*New Jersey case law also provides that once cannot waive future marital interest in an ERISA retirement plan
Requirements for a Valid Agreement
Under NJ law, the following elements of a prenuptial agreement checklist are required for an agreement to be found valid:
- A signed writing by both parties;
- Full financial disclosure of each party’s income, assets and liabilities;
- Voluntary entry into the agreement (no fraud or duress);
- Representation of counsel by each party (unless one party voluntarily and knowingly agrees to waive his or her right to counsel, in writing)
Choice of Law
Parties are able to designate a specific state to govern their agreement and to continue to govern their agreement in the future, should any issues or disputes arise. Typically, choice of law will be the same state as the state that drafted the agreement as that is typically where the parties are residing at that time. New Jersey is one of 28 states that has adopted the Uniform Premarital Agreement Act. This Act serves to provide universal application to enforcing prenuptial agreement terms. While the states that have adopted the Uniform Premarital Agreement Act may vary in their requirements for enforceability, all 50 states recognize prenuptial agreements. This means that even if parties enter into an agreement in New Jersey and designate New Jersey as the governing state in their agreement, New Jersey law would control (subject to the new state’s specific requirements as to enforceability).
Let Us Help You With Your Prenuptial Agreement
As you can see, the proper drafting of a prenuptial agreement is key to its enforceability in the future. For more information regarding prenuptial agreements, contact the Law Office of Lyons & Associates. At the law office of Lyons & Associates, we represent men and women throughout New Jersey who have unresolved family law matters. We place a premium on personalized service and attention. For a private consultation, contact us by email, visit our website, or call our office at 908-575-9777.