Many people have heard stories about prenuptial agreements not always holding up in court. The reality is that courts will try to uphold private contracts in a New Jersey divorce, provided they were entered into with full knowledge and no coercion.
Historically, judges were suspicious of prenups because they were often used by the more powerful spouse to force the other spouse to agree to unfair terms. But today, prenups are used more routinely and looked at more favorably – when properly entered into.
To be enforced, a prenuptial agreement must be in writing, signed by both parties, and include a full disclosure of all assets and liabilities of both parties. In addition, each party is required to retain their own lawyer to separately represent their individual interests.
During a divorce, the burden is on the spouse challenging the validity of the prenup to show there was coercion in the creation of the agreement. Whether or not there was coercion, a party can challenge portions of the prenup as unconscionable.
Generally, the prenup is looked at as a regular private contract entered into voluntarily by two adults. There are areas that cannot be agreed to via a prenup. For example, parents cannot make agreements about custody of the children or parenting time via a prenuptial agreement.
Prenups are most commonly used to protect assets acquired before the marriage, and to set forth how certain properties obtained during the marriage would be distributed. They many times also address the issue of alimony.
If you are considering a prenup, or wondering if yours will hold up in a divorce, consult with attorneys experienced in handling New Jersey divorce issues. Used for the right purposes, prenups can often reduce time and costs of litigation in the event of divorce.