6 Considerations When Determining the Validity of a New Jersey Prenuptial Agreement

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.

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.

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.

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.

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.

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.