Prenuptial Basics

At the beginning of a marriage, no one wants to think about it ending in divorce. Most couples prefer to focus on the positives of getting married and the future together. Some prospective spouses prefer to plan for the unfortunate possibility of divorce, and so will choose to hire an attorney to draft a prenuptial agreement.

A prenuptial agreement is essentially a contact between potential spouses. The agreement will set out certain rights and responsibilities of each spouse in the event the marriage ends in divorce. New Jersey law has strict requirements for a valid and enforceable prenuptial agreement. The agreement must be in writing and must have a list of assets owned by the parties attached to the agreement, or the parties can acknowledge in writing that they have voluntarily waived any disclosure of assets. The purpose of this is to make sure that both spouses had a fair understanding of what assets existed at the time the prenuptial was entered into, or at least knew that they had the right to request full disclosures at the time. If at the time of divorce it is revealed that one or both parties did not have a complete understanding of the assets that existed at the time, or did not waive this right voluntarily, this could be grounds to set aside the agreement. The person who may later seek to set aside the agreement is the one who bears the burden of proving the elements of the statute were not met.

Common provisions of a prenuptial agreement include such issues as spousal support or division of assets. Where one spouse has a large asset that he or she owns before the marriage begins, it is not unusual to obtain a prenuptial agreement to set out how the asset will be divided in the event of divorce, if at all. In cases where the spouse is part or full owner of a family business, this is a very common request. The amount or existence of spousal support may also be predetermined or waived. Parties may also wish to protect real estate from future division in case of divorce.

One area that cannot be included in a prenuptial agreement is anything to do with the parties' children. No determination of custody, visitation, or child support can be included in prenuptial agreements at all. Because all issues of custody of visitation are decided based on a child's best interest, it goes against public policy to allow spouses to include children in a contract as if a child was a material possession.

If you are considering having a prenuptial done before your wedding, contact us today at (732) 529-6937. We are experienced in helping clients to craft enforceable prenuptial agreements that protect their assets from future litigation.

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