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Should I have a pre-nuptial agreement prepared before my marriage?

The ring was purchased and she said yes. The wedding is planned and the invitations mailed out. The pre-nup has been signed and you are ready to say “I do”. Yes, you read that last one correctly.

Negotiating a pre-nuptial agreement or “pre-nup” may sound less than romantic. It might sound down right unpleasant during what should be a joyful time. However, in a time where divorce continues to plague a large percentage of marriages, “an ounce of prevention is worth a pound of cure”.

In recent years I have had more and more clients come to me before they marry in order to protect the assets they acquire during the marriage, or safeguard the assets they have obtained prior thereto. This is becoming more common as people are tending to marry later in life, and in turn have more financially at the time they marry.

While no one enters a marriage with the intention to divorce, it is important to be prepared in case your marriage fails. A pre-nup can save countless money in attorney fees and more importantly, spare you some of the frustration and stress that is sure to ensue during a divorce.

In New Jersey, there are certain requirements that must be met to ensure that your pre-nup is valid and that it will be enforceable in case of a divorce in the future.

In 1988, the New Jersey Uniform Premarital Agreement was adopted. The act states that in order to be valid a pre-nup must be in writing with a statement of assets for each party and of course must be signed by each party.

Pursuant to the Uniform Premarital Agreement the following can be included in a pre-nuptial agreement:

  1. 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;
  2. 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;
  3. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;
  4. The modification or elimination of spousal or one partner in a civil union couple support;
  5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  6. The ownership rights in and disposition of the death benefit from a life insurance policy;
  7. The choice of law governing the construction of the agreement; and
  8. Any other matter, including their personal rights and obligations, not in violation of public policy.

It should be noted that child custody cannot be “contracted” away as the best interest of the child makes custody open to change at any time.

If you lack an experienced attorney drafting your pre-nuptial agreement you risk the same being declared unenforceable. The Act states that a pre-nuptial agreement will not be enforceable if:

  1. It was not signed voluntarily;
  2. The agreement was completely one-sided (unconscionable);
  3. There was no full disclosure of earnings, assets or debts; and
  4. A party did not consult with legal counsel and did not waive in writing the opportunity to consult with an attorney.

I also always recommend that that the agreement be signed and negotiated well in advance of the wedding. This will avoid one party claiming that they were forced to sign the agreement under “duress” during the eleventh hour.

The drafting and negotiation of a pre-nuptial agreement is a complicated and delicate matter as it often happens during a time that should be filled with love and joy. If you have assets to protect and are planning a wedding, contact our New Jersey divorce and family law firm to discuss how we can safeguard your future in case of a divorce.

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