Have you considered a prenuptial agreement?
Why a Prenuptial Agreement is a Smart Choice
While you likely won’t enter a marriage with a plan to get divorced, an average of 50% of first marriages end in divorce. The percentage of couples who divorce is even higher for second and subsequent marriages. Creating a prenuptial agreement with the help of a New Jersey divorce attorney might help to protect your interests in case your upcoming marriage eventually ends in divorce.
What Is a Prenuptial Agreement?
A prenuptial agreement is a premarital contract between two individuals who plan to marry. This agreement might help facilitate a smoother process in case the marriage ends in divorce. In a prenuptial agreement, a qualified New Jersey divorce attorney can help the couple create a clear plan for the division of physical assets.
What You Can (and Can’t) Do With a New Jersey Prenuptial Agreement
The following are a few things you can do with a prenuptial agreement:
- Protect a spouse’s interest in a business owned before marriage
- Establish rules for spousal support, including limits on the total and conditions for when it will be owed
- Address tax responsibilities during the marriage and after a divorce
- Ensure separate property retains its separate nature in a divorce
- Define inheritance rights
- Define each spouse’s right to manage and control property
It’s also important to know what you can’t do with a prenuptial agreement. If you include a legally invalid provision in your prenuptial agreement, the court could either disregard that provision or throw out the entire contract.
You can’t use a prenuptial agreement to waive child support. In New Jersey, both parents are expected to contribute financially to raise their children, and child support is awarded in the best interests of the child instead of either parent.
Similarly, you can’t use a prenuptial agreement to try to hide some assets. Instead, you and your fiance must fully disclose your financial situation before entering into a prenuptial agreement. If you fail to disclose all of your assets, your contract will likely be thrown out by the court in a divorce.
A prenuptial agreement also can’t address how child custody will be handled. Like child support, courts instead make custody decisions in the children’s best interests instead of either parent’s wishes. How child custody might be determined is based on the best interest factors outlined in New Jersey law at the time of a divorce and not based on what you might wish for before you ever get married.
Requirements for a Prenuptial Agreement to Be Valid and Enforceable
A prenuptial agreement must adhere to strict legal criteria to be valid and enforceable under New Jersey law. The legal requirements for New Jersey prenuptial agreements are outlined in NJSA 37:2-31 et. seq.
To be valid, you must meet the following criteria:
- You and your fiancé/fiancée should have separate legal counsel.
- The agreement must be in writing.
- Both of you must review and sign the agreement.
- Both of you must fully disclose your assets, liabilities, and financial situation.
- The agreement must be fair and conscionable as of the date it is executed.
- Both parties must have the legal capacity to enter into a contract.
- Each party must freely and voluntarily agree to the prenuptial agreement without coercion, duress, or force.
You can’t draw up a prenuptial agreement on your own and demand that the other party sign it without getting it reviewed by a separate lawyer.
If your premarital agreement deviates from the legal requirements, the court will likely find it to be unenforceable. In that case, the regular principles of equitable distribution will control what happens in the property division phase of your divorce instead of an invalid prenuptial agreement.
Will a Prenuptial Agreement Be Upheld in an Annulment?
Under NJSA 37:2-39, a prenuptial agreement will not be enforceable in an annulment. Annulments are granted when a marriage is found to be void or voidable, which means that the law doesn’t recognize it as having ever legally existed. If you are granted an annulment in New Jersey because of an illegal marriage, any prenuptial agreement that you signed will not be enforced other than to the extent necessary to ensure fairness.
Benefits of Creating a Prenuptial Agreement
While it might seem hard to broach the subject of a prenuptial agreement with your fiancé, the process itself and the eventual contract can both offer several benefits as follows:
- Facilitate open and candid communication before marriage
- Ensure your marital assets will be divided fairly
- Protect children from a previous marriage or another relationship
- Define what is and isn’t marital property
- Protect one spouse’s interests in a business
- Protect you and your spouse from each other’s debts
- Simplify a divorce if it occurs
How to Get Started
It can be hard to tell your fiancé that you want a prenuptial agreement. However, your prenuptial agreement should benefit you both. You might start by telling your partner that you would like to have an open discussion about your finances. Schedule a date and time to meet. Both of you should bring your account and bill statements and be prepared to fully discuss everything, including investment accounts, physical property, and retirement accounts. Don’t forget to bring student loan statements and credit card bills.
When you meet and go over your finances, tell your prospective spouse that you think a prenuptial agreement might protect you both. Explain your reasons for considering a prenuptial agreement and why you think it is a good idea. Listen to any concerns your fiancé might have without arguing. Instead, talk about each of them honestly. Explain that both of you should have any agreement reviewed by an attorney to ensure it is fair.
If you both agree to create a prenuptial agreement, brainstorm the types of provisions that you each would like to include. However, don’t try to draft the agreement by yourself. If you do, you could make mistakes that would render it unenforceable. Instead, you should take the rough outline you create to an attorney to have the document prepared correctly according to the law. Once you have a proposed agreement, you can give it to your future spouse and have them take it to their attorney to have it reviewed.
Consult a Knowledgeable Divorce Attorney About Prenuptial Agreements
When you are preparing to marry, it makes sense to consider a prenuptial agreement. Having one in place can protect your interests if something goes wrong in your marriage. To schedule a consultation, contact an experienced Hackensack, New Jersey divorce attorney at the Law Offices of Kelly Berton Rocco today by calling 201-343-0078 or by submitting our online contact form.