Prenuptial Agreements

By Peter Van Aulen, Esq.

The New Jersey prenuptial statute is known as the “Uniform and Pre-Civil Union Agreement Act” also known as (UPAA) OR N.J.S.A. 37:2-31. Said statute was passed in 1988 and amended in 2006.

Under said statute and it subsequent section, parties may enter into a prenuptial agreement in regard to the following:

• The parties’ rights and obligations in any property whenever and wherever acquired or located;
• The parties’ right to sell, buy transfer, exchange, use, lease, expend, abandon, consume, encumber, assign, dispose of, mortgage, create a security interest in, or otherwise control and manage property;
• Distribution or division of the parties’ property upon their divorce, separation, death, dissolution of a civil union or the occurrence or non occurrence of any event;
• The elimination or modification of spousal support;
• The creation of a trust, will, or other arrangement to implement the agreement;
• Life insurance ownership rights and disposition of death benefits;
• The selection of law controlling the construction of the agreement;
• Any other issue, including the parties’ rights and obligations so long as the agreement does not violate public policy.

It is important to note that according to the UPPA a prenuptial agreement can not adversely affect a child’s right to support.

The UPPA requires the following of all prenuptial agreements:

• Be in writing
• Have an annexed statement of assets of both parties
• Be signed by both parties

According to the statute, a prenuptial agreement in NJ is enforceable without consideration. Also, according to said statute, the agreement becomes effective upon marriage or upon the parties forming a civil union. The parties after marriage or civil union may amend or revoke a prenuptial agreement only by a subsequent writing signed by both parties. Said amendment or revocation is enforceable without consideration.

According to UPPA the party alleging the unenforceability of the prenuptial agreement has the burden of proof. Said party must prove by clear and convincing evidence that:

1. The party involuntarily signed the agreement; or
2. At the time enforcement was sought the agreement was unconscionable; or
3. The party before the signing of the agreement:
   1. Was not given fair and full disclosure of the property, financial obligations, and earnings of the other party;
   2. Did not waive in writing the right of full and fair disclosure;
   3. Did not consult with an attorney, and did not voluntarily waive in writing the right to do so.

Under the UPPA an unconscionable agreement is defined as an agreement either due to lack of property or unemployability which would cause or provide the following:

1. A spouse or partner to be without means of reasonable support;
2. A spouse or partner to become a public charge; or
3. A standard of living far below what a party enjoyed before marriage or entering into a civil union.

I advise clients to have the prenuptial agreement drafted, reviewed and signed far in advance of the wedding or entering into a civil union. This way one reduces the risk of a party claiming that he or she was under duress when signing the agreement. I also advise that both parties have their own independent counsel to help ensure enforceability. It is important that a prenuptial agreement is drafted well and the UPPA is followed. If you are thinking of entering into a prenuptial agreement in NJ, call Peter Van Aulen today for a consultation at 201-845-7400.