Friday, April 21, 2017

A few facts about signing a prenuptial agreement

  • What to know about prenuptials
Prenuptials are agreements between premarital couples or partners planning a civil union. They set out contemplated guidelines for protecting assets, property and earnings in the event of a later split up. In New Jersey, the guidelines fall under N.J.S.A. 37:2-32 through 37:2-41. It applies the provisions of the Uniform Prenuptial Agreement Act (“UPAA”) under New Jersey law. The UPAA is one of a number of agreements that attempt to codify and coordinate the application of laws across state boundaries to prevent potential conflicts in applying said laws. The Uniform Law Commission drafts proposed rules in areas such as arbitration, child custody, probate, and other areas of foreign and domestic law. The UPAA was promulgated in 1983 (civil unions were incorporated into the act in New Jersey in 2006). There is currently a revision pending called the Uniform Premarital and Marital Agreements Act that would also include rights and duties for marital agreements as well as premarital agreements. This was put forward in 2012, but as yet, it does apply yet in New Jersey.
This section spells out what is necessary to create a properly executed prenup agreement, what rights the parties to the agreement have and how they may be enforced, as well as what conditions may later be considered to have created an unenforceable agreement.
The first condition to a premarital or pre-civil union agreement is that it is enforceable like any other contract. It will govern he rights and obligations of the parties to property, the right to sell, use or transfer property as well as its disposition after separation or dissolution of the marriage. It may also spell terms for the modification or elimination of spousal support just as a marital settlement agreement may do.  It can also govern the disposition of property or proceeds from things like life insurance policies in the event of the death of one or both of the spouses or partners.
A prenuptial agreement may not impact any right to a child obtaining child support as these agreements are only between the spouses or partners.
The prenuptial agreement takes effect when there is a marriage or a formal civil union. It can be revoked or amended only by written agreement of both parties.
A statement of the assets of the party should be incorporated and annexed as part of the agreement and it needs to be signed by both parties. N.J.S.A. 37:2-33.
Challenging a prenuptial agreement
In order to set aside an agreement, the party seeking to set aside the agreement has the burden of proof that either:
·        The party executed the agreement involuntarily; or the agreement was unconscionable when the agreement was executed by reasons of non-full disclosure of assets or liabilities by the other party; that the party seeking to set it aside did not consult with independent legal counsel and did not voluntarily and expressly waive in writing, their right to consult with independent legal counsel; and they did not expressly waive any rights to a full disclosure of the earnings, property and obligations of the other party. N.J.S.A. 37:2-38.

One should always make sure that they have an attorney of their own choosing look over the terms of a premarital agreement before signing. The agreement should also spell out that, if the other party does not choose to have counsel, that they are making a knowing waiver of their rights to counsel. Never agree to have the same lawyer represent you and your future spouse or partner. This already creates the potential argument that the agreement was unconscionable and meant to favor one party (usually the one with the most assets or income) over the other. N.J.S.A. 37:2-38(c)
The issue of the unconscionability of a premarital or pre-civil union agreement is one to be determined by the court as a matter of law, and only if the conditions set forth in sub-section (c) are met. N.J.S.A. 37:2-38(d). Proof is by clear and convincing evidence, so the party seeking to abrogate the agreement has a burden greater than simply by “a preponderance of the evidence.”

Two significant amendments in the Act occurred recently. The term unconscionability had previously been defined under N.J.S.A. 37:2-32(c) as "[U]nconscionable premarital or pre-civil union agreement' means an agreement, either due to a lack of property or unemployability: (1) Which would render a spouse or partner in a civil union couple without a means of reasonable support; (2) Which would make a spouse or partner in a civil union couple a public charge; or (3) Which would provide a standard of living far below that which was enjoyed before the marriage or civil union."  This sub-section however was deleted in 2013. Also as to burden of proof in enforcement of a premarital agreement N.J.S.A. 37:2-38(b) was deleted in 2013. This sub-section had previously permitted a party to argue that unconscionability at the time of enforcement of the agreement. With the deletion of this section, a party could henceforward only argue that the agreement was unconscionable when executed. These changes were set forward in 2013.,%20c.72%20-%20Revsies%20law%20regarding%20enforceability%20of%20premarital%20and%20pre-civil%20union%20agreements.pdf

Anthony J Van Zwaren

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