Marital Agreements: Prenups and Postnups in New Jersey Family Law

Marital Agreements: Prenups and Postnups in New Jersey Family Law

It has become increasingly common for couples planning to marry to enter into prenuptial agreements. For New Jersey couples, a prenuptial agreement can serve as an important planning tool while also helping to protect your rights if the marriage ends in divorce. A prenuptial agreement is a legal contract that can be used to protect your assets and prevent them from being divided in a divorce. You can also use your agreement to explain each person's obligations and rights in a divorce. However, a prenuptial agreement must be created in a way that conforms with New Jersey law. If you draft a prenuptial agreement improperly, the court can disregard it.

If you are already married and didn't create a prenuptial agreement, you still have options. You and your spouse can agree to create a postnuptial agreement to address how your assets will be divided if your marriage ends and other matters. Like a prenuptial agreement, a postnuptial agreement in New Jersey must comply with the law to be upheld. Here's what you need to know about prenuptial and postnuptial agreements from a divorce lawyer in New Jersey at Ziegler Law Group, LLC.

Key Takeaways

  • Prenups help protect assets acquired before marriage if you later divorce.
  • Postnups allow married couples to divide assets if they split up.
  • Both prenups and postnups must meet legal requirements to be valid.
  • You must fully disclose assets/debts and have independent lawyers.
  • Agreements can't address child custody/support issues.

What Is a Prenuptial Agreement?

A prenuptial agreement is a legal contract that you and your fiancé or fiancée can create before you marry. This document can help you protect any asset that you or your intended own before marriage, including the following:

  • A home
  • Stocks and bonds
  • A business
  • Assets held overseas
  • A trust
  • A valuable collection (art, jewelry, etc.)
  • Other assets

A prenuptial agreement can also be used to protect you and your intended from debts that either of you has accumulated before getting married. You can also use your prenuptial agreement to decide whether either of you will be able to seek alimony if your marriage ends. However, a prenuptial agreement can't be used to determine child custody or child support. These types of provisions, along with any provision calling for something illegal, are invalid and could result in your agreement being thrown out if you get divorced.

What Can Be Included in Prenups and Postnups

Division of AssetsCan determine who gets premarital or marital property.
Alimony WaiversCan waive right to alimony or set amount/duration.
Business InterestsCan protect business assets from division.
InheritancesCan keep gifts/inheritances separate.
DebtsCan determine who is responsible for debts.

When Is a Prenuptial Agreement Legally Valid in New Jersey?

There are several requirements for a prenuptial agreement to be legally valid in New Jersey. You and your fiancé or fiancée must both fully disclose all of your assets and debts. If you fail to disclose all of your assets and liabilities when creating a prenuptial agreement, your intended can't make an informed decision. For this reason, a resulting prenuptial agreement will likely be found invalid by the court based on your failure to disclose.

To be valid, you and your intended must also have independent attorneys to help you review the proposed agreement. Divorce attorneys in NJ can represent each of you to ensure your interests are protected.

You and your fiancé or fiancée must also enter into the agreement voluntarily. If either of you tries to coerce the other one into signing the agreement or places the other under duress to secure it, the agreement will be invalid. Finally, you both must be given enough time to consider all of the terms of the proposed agreement before you get married.

Requirements for Valid Prenups and Postnups

Full DisclosureBoth spouses must fully disclose all assets, debts, income.
Independent CounselEach spouse should have their own divorce lawyer.
No DuressBoth spouses must agree without pressure or coercion.
Legal TermsCannot include illegal or invalid provisions.

What Are the Benefits of a Prenuptial Agreement?

In New Jersey, you can tailor a prenuptial agreement to meet your needs and can include a sunset clause that establishes an expiration date for the contract. For example, your agreement might call for waiving alimony but include an expiration for that provision if your marriage lasts 10 or more years.

In many cases, prenuptial agreements can help to make divorce processes smoother. If you have a prenuptial agreement in place that addresses how your assets and debts will be divided, it can save the time and expenses that you might otherwise spend litigating related issues.

Your prenuptial agreement can also help to determine other divorce-related financial matters beyond premarital assets and liabilities, including:

  • Whether either spouse can ask for alimony
  • Type of alimony and its amount
  • How business interests should be handled
  • Division of complex investments
  • Valuation of assets

Prenuptial agreements can also help to protect family assets. For instance, if you own a business together with your family, a prenuptial agreement might help to ensure your spouse won't receive an interest in the business if your marriage ends. This can help to protect a family business from being equitably divided in an eventual divorce.

When Should You Consider Entering Into a Prenuptial Agreement?

It might be a good idea to consider a prenuptial agreement in any of the following situations:

  • You own a business.
  • You expect to receive a large monetary gift or inheritance.
  • This will be your second or subsequent marriage.
  • Your intended spouse has significant debts or student loans.
  • You earn substantially more than your intended spouse.
  • You have a large number of assets.
  • You are a trust beneficiary.
  • You want to keep any potential divorce matters private.

It's also a smart choice to create a prenuptial agreement if you simply want to ensure a smoother divorce process if your marriage doesn't work out.

What Happens if We Didn't Create a Prenup?

If you are already married and didn't create a prenuptial agreement, you might think that it's too late. However, you and your spouse could still create a postnuptial agreement. Postnuptial agreements are typically created to protect assets you and your spouse have acquired since getting married. A skilled divorce lawyer in New Jersey can help by tailoring a postnuptial agreement for your particular situation.

Who can Get a Postnuptial Agreement?

Any married couple in New Jersey can create a postnuptial agreement. You can use a postnuptial agreement to change the terms of an existing prenuptial agreement or when you don't have a prenup and want to make plans for how your assets will be divided if you end up getting divorced.

Postnuptial agreements are created for people who are already married and can help to plan for how all of their debts and assets will be divided if they divorce or separate. You can also include other issues, including alimony, in your postnuptial agreement. However, you can't use the contract to address child custody or child support.

Requirements for a Valid Postnuptial Agreement

Like a prenuptial agreement in New Jersey, your postnuptial agreement must meet the following minimum standards to be valid:

  • Full disclosure of your finances by both you and your spouse
  • Having independent legal representation
  • Lack of duress or coercion
  • Terms that are legal, fair, and equitable

These minimum standards are meant to protect both parties in a postnuptial agreement. However, since married couples have a fiduciary relationship with each other at the time they create postnuptial agreements, courts typically scrutinize postnuptial agreements more closely than they do prenuptial agreements.

Consult a Divorce Lawyer in New Jersey

If you are thinking about asking for a prenup or postnup, it's a good idea to talk to an experienced divorce lawyer in New Jersey. An attorney can help you understand the legal requirements you must meet and how to broach the topic with your significant other. To learn more, contact Ziegler Law Group, LLC today at (973) 533-1100.

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