Significant stigma surrounded prenuptial agreements for years, with many betrothed presuming that even discussing one would be damaging to their relationship. In reality, the opposite is true, when you consider that it’s an opportunity that compels couples to clearly communicate their financial goals, spending habits, debts, savings and general attitudes about money. It can also save money because it can help you dodge contentious - and costly - divorce. That said, there are limits to what may be included in a prenuptial agreement.
As our Hackensack prenuptial agreement attorneys can explain, there are certain things that, if included, will not be enforceable. It’s important to have these agreements drawn up and/or vetted by experienced family law attorneys because otherwise, one or both sides may be left with unrealistic expectations in the event of divorce or death.
In addition to specific prenuptial agreement provisions that aren’t allowed by New Jersey Courts, the entire document must meet certain standards for fairness, transparency and legality. Contracts that do not meet these thresholds can be deemed unenforceable by the Court as “void against public policy.” If one part of a prenuptial agreement is found to be unenforceable, it’s up to the Court’s discretion whether the entire agreement should be tossed out.
The scope of prenuptial agreements has broadened in recent years. Some are straightforward, solely about the financial aspects of a potential divorce. Others extend to things like division of chores, standards for grooming and who keeps the family pet.
Guidelines for Alimony in Prenuptial Agreement
Alimony is a subject commonly addressed in New Jersey prenuptial agreements. Some stipulate a baseline amount that will be paid by one party to the other in the event the marriage ends. Others indicate that one or both parties waive all rights to alimony.
The key is that whatever alimony provisions are included, that one party wasn’t unfairly disadvantaged. Some examples of things that might threaten an alimony provision in a prenuptial agreement:
- Involuntary agreement.
- Unconscionable at the time of signing.
- Lack of full and fair disclosure of earnings, property and financial obligations.
- Lack of independent counsel without a voluntary and express written waiver for counsel.
Again, this is why it is so important to have two (one for each party) family law attorneys involved in the drafting/execution of a prenuptial agreement.
Child Custody and Child Support Exclusions
Two things that cannot be included in prenuptial agreement are child support and child custody. These are considered matters of public policy, and thus cannot be agreed to in advance of marriage. Most Courts, if asked to enforce a prenuptial agreement that includes provisions encompassing child custody or child support, will at the very least strike that portion from the documents.
Parents whose marriages are headed for a legal end are allowed to negotiate their own child custody/parenting time and child support agreements as part of the overall divorce settlement. However, these agreements will not be enforceable unless/until the Court approves it.
Removing Unfair Terms
Prenuptial agreements will not be enforceable if they are deemed “unconscionable.” In layman’s terms, that means the contract is glaringly unfair to one of those involved. That doesn’t mean it requires a 50-50 split of anything. However, if the agreement is not relatively balanced, the Court could decide the entire document is no good.
That’s why it’s important for both individuals to have their own attorney review the agreement before signing it. If one person has a lawyer representing them in the process and the other doesn’t, the agreement could be deemed unfair and the whole thing successfully challenged and thrown out. This is particularly true if the partner who comes out more favorably was in a significantly better financial situation when the agreement was signed.
Any agreement that is signed under duress or fraud can be successfully challenged in Court. This means both sides need to make full disclosures of all their liabilities and assets to one another. If something isn’t disclosed or if there is evidence of intense pressure on one party to sign, the entire agreement could be ruled invalid. An argument of “intense pressure” could be raised if the agreement is signed right before the wedding. This is one reason why many family law attorneys will recommend prenuptial agreement terms be negotiated and agreed upon well in advance of the wedding date. It is important to discuss all of these points with an experienced attorney who can guide you in drafting an agreement that will protect you in the future.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.