Not so long ago, prenuptial agreements were something for the super-rich, like celebrities, and basically no one else. These days, prenuptial agreements are far more common. While some people may have once felt requesting a prenuptial agreement was tacky or made implications about your dedication to a relationship, the general cultural attitude toward this form of legal protection has become much more accepting. People now think of them as commonplace and even necessary as a form of protection. Marriage is a contract. You should agree to it on your own terms.
The modern reality about marriage is that a substantial percentage of them fail. If either spouse has married and divorced in the past, the potential for another divorce is even higher. A prenuptial agreement simply lays out the terms on which two people who intend to marry can detangle their commingled living and financial arrangements. Knowing ahead of time what will come of a divorce can actually remove the incentive for some people to divorce.
What can you include in your prenuptial agreement?
Although you have plenty of liberty to set specific terms in your prenuptial agreement about a range of issues, there are certain kinds of requests, demands or expectations that won’t get upheld in court. A prenuptial agreement in New Jersey cannot include anything “unconscionable” at the time of signing. Unconscionable means very unfair to one spouse.
For example, if one spouse is allocated a tiny fraction of the assets, while the rest go to the other, the courts may void the prenuptial agreement. Waiving alimony or foregoing your share of assets acquired during the marriage, regardless of your contribution to the family, could void the agreement. A prenuptial agreement also cannot absolve either spouse of their legal obligations to provide for any children they have during the marriage. The courts will generally not uphold any waiver of child support, especially if the custodial parent will require state aid to survive after a divorce.
Ensuring that your prenuptial agreement is valid
In order for your agreement to be valid, it must be in writing. Both future spouses should have their own independent legal counsel. Both parties must voluntarily agree without the influence of coercion. If, for example, one partner is pregnant but the child’s father won’t wed her without a prenuptial agreement, the courts could consider that coercion.
The prenuptial agreement should include a thorough and accurate current inventory of assets, debts and income for both parties. A notary or even a judge should witness the execution of the document. Both you and your future spouse should be very clear about the terms of the prenuptial agreement. If you both agree without coercion to fair terms, the chance is good that the courts will uphold your prenuptial agreement as signed in the event of a divorce.