Most family law practitioners know the ins and outs of drafting and negotiating prenuptial agreements. But, how do they handle more complex issues that arise when representing a diverse set of clients, each with his or her own unique goals concerning the protection of assets, whether acquired through the client’s own efforts or passed down by older generations? This article touches on the basics regarding enforceability of prenuptial agreements under New Jersey law, and discusses some of the difficult situations that may arise when counseling clients and how one might handle them.
The Basics
Enforceability of prenuptial agreements is governed by New Jersey’s Uniform Premarital and Pre-Civil Union Agreement Act, N.J.S.A. 37:2-31 et seq., which requires that such agreements be in writing, with a statement of assets annexed, signed by both parties. For agreements entered into on or after June 27, 2013, a successful challenger must prove by clear and convincing evidence that the agreement: (a) was not entered into voluntarily; or (b) was unconscionable when executed because he or she was not provided with full and fair disclosure of the other party’s earnings, property and financial obligations; did not waive in writing the right to disclosure of the other party’s property and obligations beyond that which was provided; did not have, or reasonably could not have had, adequate knowledge of the other party’s property and financial obligations; or did not consult with independent counsel or expressly and voluntarily waive, in writing, the right to consult with independent counsel.
