When people get married, they often think that divorce is not a possibility for them. However, given that approximately 41% of all first marriages in the United States end in divorce, it is prudent for those considering marriage to also consider drafting a prenuptial agreement in contemplation of the marriage. Prenuptial agreements, also called premarital agreements or antenuptial agreements in New Jersey, are contracts that prospective spouses enter into that provide for the distribution of jointly-owned or solely-owned assets and liabilities and also establish the legal rights of the parties with regard to spousal support or alimony upon divorce.
If properly drafted and executed, prenuptial agreements can save couples time and money on litigation and attorneys’ fees since the agreement will control who gets what in the divorce and there will be few, if any, issues concerning the divorce presented to the court for decision. Consequently, properly drafting and executing a prenuptial agreement can expedite the divorce process and can also help keep the details of the divorce private. However, if improperly drafted or executed, the validity of the agreement can be challenged, which, in turn, can cause the parties the unwanted cost and headache of engaging in protracted legal battles with one another. Accordingly, here are some tips to consider in the drafting and execution of prenuptial agreements in New Jersey.
Reduce the Entire Agreement to Writing and Have Both Parties Sign It
New Jersey law provides that, in order for a prenuptial agreement to be valid and enforceable, it must be reduced to writing and signed by both parties subject to the agreement. If the entire agreement, or parts of the agreement, are not in writing or the agreement is not signed by both parties, then New Jersey courts may declare the agreement to be out of the statute of frauds. This means that, even though the agreement might exist, courts cannot enforce said agreement because there is no written evidence of it. Accordingly, if you decide to enter into a prenuptial agreement with your prospective spouse or decide to make an amendment to an existing prenuptial agreement, you must ensure that the agreement is reduced to writing and that both parties have signed the agreement and/or amendment thereto.
Write the Terms of the Prenuptial Agreement Clearly and Unambiguously
Because prenuptial agreements are construed as contracts under New Jersey law, contract law principles are used to interpret the meaning of provisions in prenuptial agreements. One contract law principle that is important to remember is that if the words of a contract are clear and unambiguous, the terms will be afforded their plain meaning. Accordingly, it is imperative to to write the provisions of the agreement clearly and unambiguously when drafting a prenuptial agreement. This means listing specifically what items each party shall receive upon divorce, what liabilities they are obligated to pay upon divorce, and if the parties are or are not entitled to spousal support, alimony pendente lite, or alimony. If the terms are ambiguous, New Jersey courts may determine that the term means something else or that the term itself is unenforceable because of its ambiguity.
Both Parties Should Obtain the Services of Their Own Attorneys Prior to Entering into a Prenuptial Agreement
Because prenuptial agreements may be complicated, it is a good idea that both parties obtain the services of separate lawyers before said agreements are executed. Lawyers can ensure that the prenuptial agreement is fair to their respective clients. Moreover, the fact that both parties to the prenuptial agreement had independent representation means that there is less of a likelihood that the parties are able to successfully set aside the prenuptial agreement on the basis that one of them did not understand the terms of the agreement.
Attach a Statement of Assets to the Prenuptial Agreement
In New Jersey, all parties are required to prepare and submit a statement of assets with the prenuptial agreement. Otherwise, if the validity of the prenuptial agreement is challenged, New Jersey courts cannot enforce the agreement. This is because New Jersey law provides that both parties make a full disclosure of, at least, their assets before executing a prenuptial agreement.
Contact a Roseland Family Law Attorney for a Consultation About Your Prenuptial Agreement in New Jersey Today
If you are thinking about getting married and desire a prenuptial agreement, or if you are undergoing the divorce process and desire to enforce or to set aside a previously entered prenuptial agreement dealing with issues ancillary to divorce such as child custody, child support, or division of assets, you need to speak with a qualified attorney. The New Jersey family law attorneys at Nitti & Nitti Attorneys at Law represent clients throughout the state, including Roseland, Livingston, Newark, and Morristown. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.