Prenuptial Agreements may not be the stuff of great romance, but they should be considered by couples more often than they are. This is especially true for second marriages, or for those with substantial assets to protect. Prenuptial Agreements may also be appropriate in first marriages even if there are not many individual assets. In fact, Prenuptial Agreements may be even more important in those circumstances.
If you already have a Prenuptial Agreement, it is very important to keep it in a safe place and review it periodically to ensure you are complying with it.
So, how much protection does a prenuptial agreement actually provide? The answer will largely depend on when the parties entered into the Prenuptial Agreement.
New Jersey Prenuptial Agreements: A Brief History
On June 27, 2013, a new law went into effect strengthening the enforceability of Prenuptial Agreements. Any Prenuptial Agreements entered on or revised after that date will be more difficult for a court—and your spouse—to set aside.
The old law, which still governs many Prenuptial Agreements entered into before that date, provided that a Prenuptial Agreement could be set aside if:
- The agreement was “unconscionable” (i.e., shocking to the conscience, grossly unfair) at the time it was entered; or
- The agreement was “unconscionable” at the time a party sought to enforce it (usually during a divorce).
Essentially, this meant that years down the line a party could claim that even though the agreement may have been fair before the parties married, by the time the parties were divorcing, the agreement had become unconscionable.
This created a lot of instability in New Jersey’s prenuptial agreements. Some Judges were reluctant to enforce them at all.
New Jersey Prenuptial Agreements Today
Since June 27, 2013, the rules around Prenuptial Agreements have changed. The legislature deleted the provision that allowed courts to set aside a Prenuptial Agreement if it was determined to be unconscionable at the time of enforcement.
Now, the party wishing to set aside the agreement has the burden of proving, by clear and convincing evidence, that either he or she entered into the agreement involuntarily or that the agreement was unconscionable at the time it was entered (i.e., before marriage).
Theoretically, then, any good fortune enjoyed by one of the spouses after the marriage took place should not be taken into account.
Speak With an Attorney About Prenuptial Agreements
Prenuptial agreements may not be romantic, but they may be necessary if you have assets to protect or want to narrow the scope of issues in the event of a divorce. To discuss review, enforcement, or drafting of a Prenuptial Agreement, contact Rigden Lieberman today.