To have a binding Prenuptial Agreement in New Jersey, there are some things you must do, other things you must not do, and many things that will make the Agreement more useful but aren’t legally necessary (just sensible). The important stuff (whether mandatory to do’s or things you must avoid) will get and keep you in the game. How well the Agreement turns out for you depends on what happens in between.

If you’re getting married, a Prenuptial Agreement is something you should seriously consider and spend time and effort to thoughtfully put together. It may greatly lessen potential conflicts if you later divorce, because property and financial issues will already be determined.

Ideally, you’ll never get divorced, and the Agreement will be filed away and never seen again. yet we don’t live in an ideal world, and about half of all marriages end in divorce – including marriages of people who already have been divorced from others before.

Do: Create a Binding Contract

Although a Prenuptial Agreement impacts your rights and interests as defined by family law, it’s based on contract law. A contract is a voluntary obligation that results from a shared intention due to an offer and acceptance of terms. For a contract to be valid, there must be:

• Agreement among the parties, which follows an offer and acceptance. The offer must be specific enough so the other party knows their rights and duties. In this context, the parties exchange promises that after the wedding, they will do certain things or refrain from doing other things.
• In contracts, generally, the parties must exchange consideration. They’re required to give each other something of value, which can be satisfied merely by agreeing to do or not do certain things.
• If a party is subject to duress, undue influence, or fraud, they can’t knowingly and willingly enter into the contract. Their apparent agreement through signature has no legal effect, and the contract can’t be enforced.
• All parties must have the legal capacity to enter into a contract. They must understand the nature of their action and of the rights and obligations created under the Agreement. Legal capacity can be an issue if a party has a mental illness, is intoxicated at the time of signing, or is not old enough to bind themselves to a contract. New Jersey permits contract entry by those over 18.

Some requirements are specific to Prenuptial Agreements.

Do: Comply With Formalities

The agreement must be written, have a statement of assets and debts for each party attached, and be signed by both parties, according to state statute.

Don’t: Exclude Child Support

A Prenuptial Agreement can’t affect a child’s right to child support.

Don’t: Make the Terms Unconscionable

A party challenging a Prenuptial Agreement can later claim the terms are unconscionable. In this context, that means they later may claim (whether true or false) they didn’t:

• Get a full and fair disclosure of their future spouse’s earnings, property, and financial obligations
• Voluntarily and in writing expressly waive any right to receive their future spouse’s disclosure of property or financial obligations
• Consult with an independent attorney and didn’t waive, expressly and voluntarily, in writing, the opportunity to do so

Since the Agreement focuses on property and financial issues, both parties must fully disclose this information prior to signing the Agreement.

Neither Do’s Nor Don’t’s, But Topics That Should Be Covered

New Jersey’s Prenuptial Agreement statute spells out what a Prenuptial Agreement must contain, but, while not required, certain important topics should be included, such as:

• The parties’ obligations and rights in the property of either or both, no matter when it was acquired, in whose name titled, or where it is located
• The right to sell, buy, use, exchange, transfer, abandon, lease, expend, assign, create a security interest in, encumber, mortgage, dispose of, manage, or control property
• How property will be handled if the parties separate, divorce, die, or after some other event
• Changing or eliminating spousal support
• Making a Will, trust, or other arrangement to fund the Agreement’s provisions
• Ownership rights in and disposition of death benefits from life insurance policies
• Setting forth which state’s laws will be used to interpret or enforce the Agreement, no matter what state’s court are called upon to do so in the future

If the parties agree that a Prenuptial Agreement is a good idea, then please contact our office. You may be unaware of many important issues and be unprotected if they’re not addressed. Both parties have obligations they must fulfill for the Agreement to be enforceable. We ensure our clients live up to the law and make sure the other party does the same.

We do NOT represent both parties; by law and ethics, we only may represent one party to the Agreement.  We routinely provide a list of other lawyers with whom we work well, in case the other party wants to consult with someone we already know and trust.

Contact Our Family Lawyers About a Prenuptial Agreement

If you want to speak with an attorney about a Prenuptial Agreement, divorce, or another family law matter, please contact our Princeton office. We offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, plus evening appointments during the week by pre-arrangement. We accept credit card payments. Please write  us online or call 609-683-7400.  Call today. You will be glad you did!