I love my Fiancé… Do I really need a Prenup?

A prenuptial agreement, often abbreviated as “prenup,” is a legal contract made between two individuals who are planning to marry. This agreement typically outlines the rights and responsibilities of each spouse in the event of divorce or death. While prenuptial agreements are commonly associated with the division of assets and spousal support in case of divorce, they can cover a wide range of issues, including Division of Property, Alimony, Inheritance Rights, Business Ownership, Financial Responsibilities during the marriage including filing of taxes, debt allocation, and more.

Prenups are legally binding contracts, but they must meet certain requirements to be enforceable, such as full disclosure of assets, voluntary consent of both parties, and fairness in the terms. It’s essential for both parties to seek independent legal advice when drafting or reviewing a prenuptial agreement to ensure that their rights and interests are protected.

Overall, prenups can provide clarity and security for couples entering into marriage, allowing them to address potential issues in advance and potentially avoid contentious disputes in the event of divorce or death.

At Kornitzer Family Law, we often advise clients to draft a prenup, even if it is not “romantic.”  Couples We certainly – and almost always- recommend a prenup when the parties are entering a second or subsequent marriage.  Here are some reasons to get a prenup:

  1. One or both parties were married before;
  2. One or both have children from a prior relationship;
  3. One party is in a much better financial position than the other;
  4. One party has far more debt than the other;
  5. One or both own a business;
  6. Either or both parties want to keep their personal life private;
  7. There is an inheritance to protect.

The process for drawing up a prenup is not very onerous, and certainly far less costly than a Divorce litigation when the issues were not previously explored.  We recommend the parties begin discussing early, and both sides need to seek independent legal advice.  To be clear, one same lawyer cannot represent both parties to prepare a prenup, this could be conflict of interest. There needs to be honesty, and full transparency, in Prenup negotiations.  We believe this is more easily achieved when parties are separating, so take advantage of that goodwill feeling when you are getting married to lay down all your cards with positivity.  Outline your key points and goals, if there were to be a Divorce.  For example, who would remain living in the house?

Your lawyer will take care of the drafting of the agreement, making sure it is in compliance with the laws of your state.  You may have to negotiate slightly, which again, is better done now than when parties divorce and there is hurt and bitterness to cloud the issues.  And lastly, once the agreement is finalized, it gets signed by both sides and witnessed by their respective lawyers.

What happens when your fiancé won’t sign a prenup?  This attitude often comes from a fear or lack of understanding of the risks in marriage and the potential costs of a Divorce.  People who are planning a wedding are on a “high” and do not want to face the prospect of Divorce.  Further, they are in love and can’t see themselves, at this time, bickering and fighting over asset division or who gets to stay in the house.  If they never have been married before, they can’t be expected to understand how litigious a Divorce can get.  But this is where we have a word to the wise: Take the advice of those who deal in Divorce routinely.  Put aside the joy and get practical for a moment.  We all know someone who went through a nasty Divorce.  Ask that person if they wish they had obtained a prenup or marriage contract.  Their answer may surprise those who are reluctant.

Another thought is that if you cannot honestly address and communicate your needs formally with a spouse, this may not bode well for the marriage.  There needs to be full open communication between the spouses in a marriage, if it is going to work.  Fear, guilt, and refusal to face issues should be a red flag from the get-go.

Do New Jersey Courts always enforce a prenup?  New Jersey courts generally enforce prenuptial agreements, but certain conditions must be met for them to be considered valid and enforceable:

  1. Full Disclosure: Both parties must fully disclose their assets, liabilities, and financial circumstances when entering into the prenuptial agreement. Failure to provide complete and accurate information could invalidate the agreement.
  2. Voluntary Agreement: The agreement must be entered into voluntarily by both parties without coercion, duress, or undue influence. Each party should have had the opportunity to review the agreement with independent legal counsel if desired.
  3. Fair and Equitable: The terms of the prenuptial agreement must be fair and equitable at the time of execution and should not leave one party with an unconscionable advantage over the other. It should not be overly one-sided or oppressive.
  4. In Writing: Prenups in New Jersey must be in writing and signed by both parties. Oral agreements are generally not enforceable.
  5. Legal Capacity: Both parties must have the legal capacity to enter into the agreement, meaning they must be of sound mind and not under the influence of drugs or alcohol at the time of signing.
  6. Not Against Public Policy: The terms of the prenuptial agreement must not violate public policy. For example, provisions that waive child support obligations or encourage divorce may be deemed unenforceable.

If a prenup meets these criteria, New Jersey courts are likely to enforce it. However, if one party believes the agreement is invalid or unfair, they may challenge it in court, and the court will review the circumstances surrounding the agreement’s formation and terms to determine its enforceability. It’s essential for individuals considering a prenup in New Jersey to seek guidance from a qualified attorney to ensure that their rights are well protected.

Hopefully, just like car or life insurance, a prenup is going to end up carefully kept in a safe place, and you will never have to take it out.  It’s a case of “better safe than sorry.”

And Mazal Tov, by the way😊

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