What Happens When One Spouse Refuses To Honor A Prenup?
Israeli socialite and reality TV celebrity Nicol Raidman is divorcing her billionaire husband of 11 years, oligarch Michael Cherney. Their split is billed as the “most expensive divorce” to ever take place in Israel.
It may also be one of the most contentious, as per reports, Raidman has already made claims that Cherney failed to honor his prenuptial agreement with her, which promised Raidman $25 million in any settlement.
How might a judge view Cherney’s refusal to honor the terms?
If this high net worth divorce were to take place in New Jersey, here is what the couple could expect…
How to Enforce a Prenuptial Agreement in New Jersey
In New Jersey, a 2013 law changed the way prenuptial agreements are evaluated for enforceability — or the ability for their terms to be legally enforced/carried out.
Prior to 2013, all prenuptial agreements would be examined by a judge for enforceability at the time of the couple’s divorce. This resulted in prenups of radically different quality. Some spouses would turn up to their divorce with a prenup that had been written on the back of a napkin decades earlier or claiming that a verbal agreement had been struck before their marriage. Other spouses said they agreed to the terms under duress, afraid the marriage wouldn’t take place unless they said yes. Still others claimed that certain financial information had not been shared and so invalidated the agreement.
As you can probably guess, a contested prenup would often drag out the divorce as the judge would need to work through it line by line to check its legality.
Under the law change of 2013, all this changed .
Prenuptial agreements entered into after 2013 are now carefully examined and deemed enforceable (or not) at the time the agreement is signed before the couple marries.
This rule change had made it much more streamlined and easy for the terms of the prenup to be enforced, and for the agreements themselves to be more uniform. Because the prenup has already been approved by the courts as enforceable, there is less risk for legal challenges to the document during the divorce.
When prenuptial agreements are disputed, as appears to be the case in the Raidman and Chenery split, the first step the judge will take is to check is the date of the marriage and signing of the prenup. If it is before 2013, the old rules apply and the judge will need to start from scratch to determine whether the terms are enforceable.
What determines an enforceable vs. unenforceable prenuptial agreement? Generally, it boils down to these key factors:
- Did each party have their own attorney when creating the agreement?
- Was full financial disclosure provided by both parties?
- Was the agreement signed under coercion or duress? (If this can be proven, the entirety of the document may be invalidated.)
- Was the agreement reviewed and approved by the courts as enforceable at the time it was created? (This applies to prenups signed on or after 2013 law update.)
When a prenup is enforceable, the terms can stand unless both sides mutually decide to set the document aside. In most cases, the terms of the enforceable prenup are simply transferred to the Marital Settlement Agreement. If one spouse refuses to comply, enforcement measures can include asset and/or wage garnishment.
Have an older prenup? Here’s a tip: If you signed a prenup before 2013 and you are concerned there is something irregular about it that could make it contested, have a family law attorney review it. If needed, you and spouse can enter into a post-nuptial agreement that can include similar terms and is up-to-date with current law.
Creating an Ironclad Prenup
A prenuptial agreement is a helpful tool that allows both spouses to outline certain asset and other financial agreements in the event of divorce, including alimony terms. Prenups offer particular benefits for:
- Spouses entering a second or subsequent marriage,
- Spouses entering marriage with considerable assets, including monetary and intellectual assets
- Spouses who own or share in a family business.
- Spouse with children from a previous marriage (for whom certain assets should be assigned).
We’ll keep an eye out for what happens in the Raidman divorce. Prenups are now more commonplace than ever and — we can’t say this enough — aren’t just for the wealthy! Still, it’s these high profile and high net worth divorces that make the news and present new learning opportunities about prenups.
Is establishing a prenuptial agreement right for you?
5 Reasons Why Millennials Are Saying Yes to a Prenup Before They Say ‘I Do’
Interested in establishing a prenuptial agreement before your upcoming wedding? For advice and answers to all your questions about prenuptial agreements, call us today to schedule a confidential attorney consultation: 888-888-0919.