Prenuptial Agreement Reform in New Jersey

There have been recent reforms to the laws governing prenuptial agreements in New Jersey. The purpose of a prenuptial agreement is to legally memorialize the parties' intentions and rights regarding all or certain aspects of the marriage or civil union before either takes place in an attempt to avoid litigation should the marriage or civil union dissolve. In most states throughout this country, prenuptial agreements are strictly enforced provided that procedural and disclosure requirements are followed. In New Jersey, courts will neglect to enforce prenuptial agreements if the aforementioned procedural safeguards are not followed, just like in most other states. However, New Jersey courts provide parties with an additional means to avoid the enforcement of such agreements. The courts will not enforce prenuptial agreements that are considered to be unconscionable, both when the agreements are initially executed and also at the time that the parties want them to be enforced - typically at the time of a divorce or dissolution. The affect that this has on the validity of a "prenup" can be profound. The language in the law that allows for a party to avoid the enforcement of the terms of an agreement due to unconscionability essentially provides a party with an avenue to allow the terms of the agreement to be litigated in the courts, which is contrary to the entire purpose of the prenuptial agreement. If a party desires to prevent the enforcement of the terms of the agreement at the time of dissolution, he or she only has to claim that the agreement is or was unconscionable and the court may delay the enforcement of the agreement until the disputed terms are litigated. As of June 27, 2013, the New Jersey Legislature amended R.S.37:2-38, the law that governs prenuptial agreements, to remove the language that provides parties with the ability to claim unconscionability at the time of enforcement. Therefore, as long as the agreement was not unconscionable at the time of its execution, parties were provided with full disclosure of information, and all other procedural safeguards were followed at the time of execution - the courts should strictly enforce the agreement upon dissolution. Ultimately, the removal of this language in the law functions to strengthen the enforceability of pre-marital and pre-civil union agreements. This amendment will govern all prenuptial agreements executed on or after the effective date of the amendment. If you are entering into a second marriage and want to protect your children, you have a high net worth, are seeking to protect a business interest or have any other reason to protect your assets when entering into a marriage it is critical that you consult an attorney experienced in prenuptial agreements. For more information regarding pre-nups, alimony, palimony, child support, equitable distribution or other family law issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.