When you buy milk, salad greens or yogurt in the supermarket, you always look at the expiration date. Our medications, too, contain expiration dates, as the strength of the dosage decreases over time. Even retail store receipts include a date by which items must be returned.
However, when a young woman signs a prenuptial agreement, she does not believe it will ever be needed and waives her alimony claim prior to her marriage.
Fast forward to a divorce after 25 years of marriage: the husband pulls the long-forgotten agreement out of the closet. Should it now serve as an impenetrable shield that bars receipt of alimony, when the duration of this marriage coupled with other factors, such as disparity of income, would likely create a permanent alimony case? Does this not seem to rail against public policy?
Most pre-nups seem to be signed only days before the wedding. This “midnight execution” in itself poses a problem. In addition to an expiration date, shouldn’t pre-nups have a waiting period similar to the 72-hour one imposed when obtaining a marriage license? Parties entering into pre-nups should be required to take a requisite amount of time to read, review and reflect on the effects of the agreement.
Asking a 22-year-old on the eve of her wedding day to simply “sign here,” before putting on her veil, hardly seems fair. Perhaps a 30- or 90-day wait period should be considered.
When pre-nups first came into use, the majority were used in second marriages where the children from those prior relationships were emancipated. The primary purpose was to protect the adult children’s inheritances. Today, the ranks of pre-nups have grown to include first marriages with no children.
Some agreements even include provisions stating that if one party institutes a divorce action or “cheats,” he or she is not entitled to alimony.
In Jacobetti v. Jacobetti 263 N.J. Super 608 (App. Div. 1993), the court said that the principle of changed circumstances and the passage of time are factors to be considered.
Let’s talk about whether it is “unconscionable,” which according to the statute, seems to mean that enforcement of the pre-nup would result in a standard of living far below that enjoyed during the marriage, as noted in Rogers v. Gordon, 404 N.J. Super. 213 (App. Div. 2008).
How do we weigh the words “far below”? Must we reach poverty level to receive alimony under the pre-nup? How might this be remedied?
In Marschall v. Marschall, 195 N.J. Super. 16 (Ch. Div. 1984), the court opined that “to the extent that ante-nuptial agreements can reduce uncertainties and minimize costs, without impairing the legislative goals embodied in our statutes, they should be welcomed.” [Emphasis added.]
Now, do I think that this is in the purview of judicial decision making? The answer is clear, as a trial judge should not rewrite agreements between parties, nor do courts, at the trial level, have the power to legislate. Can the Legislature amend the statute (as it just did for palimony) by adding an expiration date (e.g., 10 years) and a signing date (30 to 90 days ante) to allow a court to return to the same factors applied to marriages that do not have prenuptial agreements? Absolutely.
The Legislature has begun to take action, but perhaps unknowingly has gone in the wrong direction. S-2151 would require judges in divorce actions to evaluate premarriage agreements for conscionability as of the date of their execution. The sponsor states that “this would mandate less time in the courtroom and cause less acrimony when two people split.”
When I was a judge, I mandated compliance with those two goals. So there we are in agreement. But not when it can render one spouse a pauper or unjustly enrich the other based on a piece of paper that has now turned yellow with age. The date of enforcement being sought as presently set in the statute must remain, not for the lawyers, but for those they represent in our courts. Fairness should be more than a perception, it should be a reality. •