• Prenuptial Agreements: They Can Protect Both Spouses
  • December 28, 2012
  • Law Firm: Brad M. Micklin Esq. Counsellor at Law L.L.C. - Nutley Office
  • I am often confronted witht the question of whether or not a person should have a prenuptial agreement.  New Jersey adopted the UPAA in 1988.  New Jersey’s status applies to all premarital agreements executed the “90th day after” August 5, 1988.  A sample of the significant provisions of the Act are below.

     

    New Jersey Uniform Premarital and Pre-Civil Union Agreement Act

    (N.J.S.A. 37:2-31 to 37:2-41)

    Differences from original UPAA:

    • 37:2-32: defines a “premarital and pre-civil union agreement” as “an agreement between prospective spouses or partners in a civil union and to effective upon marriage or upon the parties establishing a civil union.”  This expanded the original UPAA to include same-sex couples.
    • 37:2-32(c) defines an unconscionable agreement
    • requires more formalities in execution than original UPAA
      • Agreement must be in writing, signed by both parties and acknowledged.  There must also be a statement of assets attached to the agreement.
      • 37:2-34:  provides that parties can contract about any other matter not listed as long as it does not violate public policy or a criminal statute
      • 37:2-38:  States that it is the burden of the party seeks to have the agreement deemed unenforceable to prove that it is unenforceable.  Also indicates that the standard of proof is “clear and convincing evidence.”
      • Requires “full and fair disclosure” instead of “fair and reasonable disclosure.”  This a higher standard of disclosure than that required by the original UPAA.
      • Takes into account whether party against whom enforcement is sought had consulted with independent legal counsel or voluntarily and expressly waived, in writing, the right to consult with legal counsel.

    Reading the statute may not tell you whether or not you need one.  However, I and many commentators believe all couples should have a prenuptial agreement.  

    Prenuptial agreements are not, or at least, do not need to be an "all or nothing" agreement.  Most envision prenuptial agreements as denying the other spouse any share of the assets and prohibiting.  While many are like this, the prenuptial agreement does not have to drafted like that.

    A prenuptial agreement allows marrying individuals an opportunity to discuss their financial positions and future issues at a time when they care the most about each other.  It is still common for couples to keep finances separate.  This results in many spouses having absolutely no clue about the other spouse's income, compensation structure and debt situation.  I have had couples after 10-20 years of marriage come for a divorce and have no idea of the other's compensation structure or financial position.

    A prenuptial agreement allows the couple to really examine each other's fiancial position, their assets and their debts, which also indicates their spending habits and responsibility with finances.  All issues that should be examined BEFORE marriage.

     

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