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Updated by Archer Law on Aug 23, 2017
Headline for 6 Considerations When Determining the Validity of a New Jersey Prenuptial Agreement
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6 Considerations When Determining the Validity of a New Jersey Prenuptial Agreement

The Uniform Premarital Agreement Act (UPAA) in NJ and other states, establishes a set of transparent regulations that govern the extent and validity of prenuptial agreements. Generally, New Jersey prenuptial agreements are enforceable, so long as they satisfy certain legal requirements. If a prenuptial agreement is in violation of such requirements, a court may find the agreement invalid and unenforceable. Consider the following legal requirements and contact a NJ family attorney for more information.

1

Formal Procedural Requirements

New Jersey prenuptial agreements are subject to various formal procedural requirements. To be deemed valid, a prenuptial agreement must be in writing and signed by both spouses, and a statement of each spouse’s separate assets and debts must be attached to the agreement. This statement of assets and debts is important as it provides a reference point for later determining whether the financial assets disclosed at the time of the agreement were, in fact, accurate.

2

Modification of the Prenuptial Agreement

New Jersey law entitles spouses to modify their prenuptial agreement during marriage. When doing so, however, spouses must be careful to avoid making changes that will be deemed invalid. Any and all modifications must be in writing (you cannot verbally agree to modify the terms of the prenuptial agreement) and signed by both spouses.

3

Inadequate Financial Disclosure

A complete and accurate disclosure of assets is critical to the prenuptial contract. If either spouse does not fully disclose their assets and debts at the time of the agreement’s execution, then the agreement may be deemed invalid and unenforceable. When drafting an agreement, it’s important for each spouse to avoid “curating” their assets and debts. All assets and debts should be disclosed.

4

No Consultation with Independent Counsel

Spouses are free to contract with each other through a prenuptial agreement, but New Jersey law requires that spouses seek consultation with independent legal counsel prior to entering into a prenuptial agreement. If either spouse decides not to independently consult with an attorney, then the prenuptial agreement must include a statement in which the spouse acknowledges that they waived their right to independent legal counsel. Since NJ family attorneys understand the law and have experience dealing with hundreds of family cases, it is advised to consider an attorney if possible.

5

Lack of True Consent

Just as with other contracts, a prenuptial agreement cannot be entered into unwillingly by either spouse. Each spouse must freely and voluntarily enter into the agreement. If the evidence reveals that one spouse forced or otherwise coerced the other into entering the agreement, then a court is likely to find that the agreement is invalid.

6

Unconscionable Agreement

Prenuptial agreements must be reasonable, given the circumstances. This “reasonableness” requirement restricts New Jersey prenuptial agreements somewhat. Prenuptial agreements must not — at the time that they are enforced — create such a situation that one spouse would be left in a particularly unjust state. For example, if the living standards of one spouse were to drop precipitously after divorce (due to the provisions of the prenuptial agreement), then the agreement may be deemed unconscionable, and may not be enforced.

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