Family lawyers, having lost the battle to block a new law restricting judicial interpretations of prenuptial agreements, are girding for its impact. The law, signed June 28 by Gov. Chris Christie, mandates that judges evaluate the agreements as of the date of their signing, not the date of enforcement — effectively removing consideration of changed circumstances.
On June 28, 2013, Governor Christie signed into law key rule changes concerning the enforceability of prenuptial or pre-civil union agreements in New Jersey. Weinberger Divorce & Family Law Group, LLC attorney Carmela Novi wrote a guest blog explaining these prenuptial agreement rule changes when they were first proposed in the New Jersey Assembly last year (See New Jersey Bill Questions Conscionability in Prenuptial Agreements). However, now that they are official, how do changes to pre-nups affect those seeking pre-martial agreements, or attempting to enforce or dispute one already in place?
According to R.S.37:2-32 and R.S.37:2-38, the new law mandates that judges evaluate the prenuptial agreements as of the date of their signing, not the date of enforcement — effectively removing consideration of most changed circumstances.
In essence, if one spouse objects or disputes to the terms of a prenup at the time the couple divorces, the burden of proof to set aside a premarital or pre-civil union agreement “shall be upon the party alleging the agreement to be unenforceable.”
Additionally, the amended prenuptial rule more specifically defines what a prenup is and gives examples of what constitutes an “unconscionable” premarital or pre-civil union agreement at the time the couple divorces:
a. “Premarital or pre-civil union agreement” means an agreement between prospective spouses or partners in a civil union couple made in contemplation of marriage or a civil union and to be effective upon marriage or upon the parties establishing a civil union;
b. “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings;
c. [“Unconscionable premarital or pre-civil union agreement” means an agreement, either due to a lack of property or unemployability:
(1) Which would render a spouse or partner in a civil union couple without a means of reasonable support;
(2) Which would make a spouse or partner in a civil union couple a public charge; or
(3) Which would provide a standard of living far below that which was enjoyed before the marriage or civil union.] (Deleted by amendment, P.L. , c. (pending before the Legislature as this bill)
(cf: P.L.2006, s.103, s.27)
Additionally, if one party in the divorce seeks to set aside the agreement, a judge will consider whether the following conditions have been satisfied:
2. R.S.37:2-38 is amended to read as follows:
37:2-38. Enforcement of premarital or pre-civil union agreement; generally.
The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:
a. The party executed the agreement involuntarily; or
b. [Item deleted by committee before being passed]
c. [That] The agreement was unconscionable when it was executed because that party, before execution of the agreement:
(1) Was not provided full and fair disclosure of the earnings,
property and financial obligations of the other party;
(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.
(cf: P.L.2006, s.103, s.33)
What does all this mean for you? If you are seeking a prenuptial agreement in New Jersey, you must have an understanding of these rule changes or you might find yourself with a worthless document when you go to divorce. If you currently have a New Jersey prenuptial agreement in place that did not meet these criteria, please seek the help of a qualified attorneys to learn about your options, including the possibility of seeking a post-nuptial agreement to cover certain issues, including spousal support and division of assets acquired after marriage.
If you have any questions about your prenuptial agreement, please contact us for an initial consultation on your matter.