Prenuptial Agreements in NJ

Very few people who are about to be married think about getting divorced.  Why would they?  They are in love and optimistic about entering a life-long relationship.  The reality is that around half of all marriages end in divorce.

More and more couples are signing prenuptial agreements (sometimes called a prenup) prior to the wedding.  Prenuptial agreements can cover many items such as what happens upon divorce or who is responsible for what during the marriage.

Why do people consider prenuptial agreements?

• Document and preserve pre-marital/separate assets or protection from the spouse’s pre-marital debts (think things like student loans, credit card balances, mortgages, etc.)
• Supporting an estate plan
• Pre-determining divorce parameters such as alimony and equitable distribution
• Protecting against the differing state (or even country) laws if you later move to a different state from the one you were married in (i.e. an equitable distribution state v. a community property state)
• Dealing with children and other issues from previous marriages or relationships
• Addressing retirement benefits, stock options, stocks, real estate and other items whose values might increase during the marriage
• Determining who might be responsible for what chores, money management, sexual relations and other items during the marriage
• If one of the spouses owns a business
• Ownership rights and disposition of the benefits from a life insurance policy
• Should one of the spouses leave a career to raise the children
• Determining which law will be governing in case of divorce

A prenuptial agreement can be thought of as an insurance policy.  No one expects to die young or get into a car accident, yet many people have life insurance and automotive liability insurance.

Another huge benefit of a prenuptial agreement is the process of negotiating one.  Many spouses entering marriage never talk about finances — what each owns, what each owes, how much each makes, how they intend on paying bills and manage their money, etc.  A major reason for divorces are differences over money or lack of money.  Discussing a prenup can be helpful in avoiding those issues.  If a couple can not discuss the items going into a prenup, it does not bode well for success of the marriage.

How do couples go about getting a prenuptial agreement?  There are two options.  One is that each of you hire an attorney to negotiate what you each want or are willing to agree to.  This can be an expensive and adversarial process.  Our legal system is set up to be adversarial.  The other option is to use a mediator.  A trained and experienced mediator will know state law regarding marital matters and can lead the discussions on the items the couple needs/wants to agree upon.  The mediator can also help the couple bridge any impasses that might arise.  The parties are strongly encouraged to have independent attorneys review the final document before signing it.

Anything specific to New Jersey when it comes to prenuptial agreements?

• New Jersey passed the Uniform Premarital Agreement Act in 1988
• Couples may not pre-determine any issues dealing with children, since the standard for children’s issues is “best interest of the child” (it is difficult to predetermine their needs)
• All prenups must be in writing and signed by both spouses
• The agreement must have a statement of assets and liabilities attached
• The agreement may be amended or revoked after marriage if done in writing and signed by both parties
• When one spouse does not hire an attorney, a statement must be made in the prenuptial agreement that he or she freely, knowingly, and voluntarily waived the right to be represented by counsel

If you are thinking about a prenup, consider mediation to negotiate the terms of your agreement.  It’s like buying a house.  You negotiate the price and terms with the other side then bring the attorneys to make sure the agreement is finalized correctly.

Contact me with any questions or to get started.