In New Jersey, prenuptial agreements, which are also called “premarital,” “antenuptial,” “postnuptial,” or simply “prenup” agreements, are contracts made between prospective spouses which become effective upon marriage. If drafted properly they can save both spouses significant expense and emotional trauma if the marriage comes to an end, which happens about 50% of the time. Prenuptial agreements also expedite the New Jersey divorce process because they can help avoid the time-consuming process of having a court resolve issues that have already been addressed in the premarital agreement.


Common Prenuptial Agreement Clauses: Things to Keep in Mind


When drawing up typical prenuptial agreements, decisions are based on present circumstances. Over time those circumstances can change, making the agreement less equitable. The loss of a job, illness, injury or other disability can leave one person in need of greater support than when the original agreement was written. Under such circumstances, an aggrieved spouse USED TO BE ABLE TO PETITION the court to revise the agreement so neither party is left living below the standard they enjoyed while in the relationship.


In 2013, Gov. Chris Christie signed into law revisions endorsed by the State Legislature making it more difficult to revise a prenuptial agreement. In short, courts now can only modify the agreement if it can be proven it was “unconscionable” at the time it was signed. Under the revisions, a typical prenuptial agreement would be considered “unconscionable” if one of the parties entered into it without being fully aware of the assets and liabilities of the other party and without waiving his or her right to be so informed. Such circumstances would still allow the court to invalidate the agreement.


However, courts would no longer be able to invalidate a common prenuptial agreement clause based on hardships that occurred after the agreement was signed. These revisions are not retroactive and apply only to pre-marital or pre-civil union agreements entered into or modified (by the affected parties themselves) after the revisions were signed into law, which was June 27, 2013.


Common Prenuptial Agreement Clauses


  •         Rights in joint and separate property. Both spouses’ rights and obligations to joint and separate property, whenever and wherever acquired or located, including the right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of, or otherwise manage and control the property, and how that property will be divided upon separation, divorce, death, or the occurrence or nonoccurrence of any other event; 
  •         The determination or elimination of spousal support or alimony.
  •         The making of a will to carry out the terms of the prenup in the event of death or disability of the either spouse.
  •         Ownership and disposition of death benefits under a life insurance policy. 


Common Prenuptial Agreement Clauses: What You Can’t Address in a Prenup


  •         Child support or child custody. Prospective spouses may not predetermine child support or custody arrangements for children in a common prenuptial agreement clause. These issues are typically decided by a court using a “best interests” standard, meaning the court must look at what is in the best interests of the child at the time of the separation and after.  Any other rule could result in ridiculous circumstances like a child, who was not even born at the time of entering into the prenuptial agreement, being forced into the custody of a wife who became an alcoholic and drug abuser with no job. Obviously, public policy wants to avoid such situations, so these issues cannot be included in a prenuptial agreement in New Jersey.


Common Prenuptial Agreement Clauses: Requirements for a Valid Prenup


  •         Must be in writing
  •         Must have a statement of assets and liabilities attached. There must also be a statement of assets attached to the agreement. The purpose of the statement of assets is to guarantee that there will be fair and reasonable disclosure of the respective spouses’ financial information, because misleading a prospective spouse about assets or liabilities at the time of entering into the prenup can be a basis for invalidation of the agreement.
  •         Advice of an attorney is NOT required. Although not required, it is advisable that both spouses consult with an attorney to discuss common prenuptial agreement clauses prior to entering a prenup. In situations where one spouse does not hire an attorney, a statement must be made in the premarital agreement that he or she freely, knowingly, and voluntarily waived the right to be represented by counsel or it could form a basis to challenge the common prenuptial agreement clauses.


Common Prenuptial Agreement Clauses: Challenging a Prenup


  •         The spouse that contests the premarital agreement has the burden of proof.
  •         The standard of proof for spouse that contests the premarital agreement is they must show by clear and convincing evidence one of 5 circumstances occurred:
      1.     Agreement was signed involuntarily due to coercion, proximity to marriage date, and threats.
      2.     Agreement was unconscionable (i.e., grossly unreasonable) at the time it was signed. One basis for unconscionability is that it renders dependent spouse impoverished by its terms. The court will find the prenuptial agreement unconscionable if it is shown that the challenging spouse would be without reasonable support, would have to depend on public assistance or would be provided a standard of living far below the one s/he enjoyed before the marriage.
      3.     Agreement fails to make a full and accurate disclosure of assets and liabilities.
      4.     One spouse did not have adequate knowledge of the property or financial obligations of the other spouse.
      5.     Lack of independent counsel or involuntary waiver of right to counsel.


If you are thinking a typical prenuptial agreement might be a good idea before you marry, or you signed a prenup that you think is grossly unfair, give us a call today so we can explain your rights and obligations regarding common prenuptial agreement clauses.

Erin D. DeGeorge
Erin D. DeGeorge joined DeTorres & DeGeorge, LLC as partner to the firm in June of 2010. Prior to joining DeTorres & DeGeorge, Erin was associated with the national firm of Fox Rothschild LLP and Cutler, Simeone, Townsend, Tomaio & Newmark, LLC...
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