Family Law Attorneys Advising on the Importance of a Valid Prenuptial Agreement
Professionally Serving in Brick, Sea Girt, Toms River, Wall, Point Pleasant, and Ocean and Monmouth Counties.
As part of the wedding planning checklist, multiple soon-to-be-wed couples decide or are mandated by their loved ones to develop a prenuptial agreement, protecting their rights and assets if they face a later divorce or the passing of one of the spouses. Prenuptial agreements generally are a compilation of clauses describing how one or both parties would give up their rights, contrary to how it would usually flow in the absence of a prenuptial agreement. Some commonly found exclusions are receiving less than would be considered equitable distribution, less alimony or no alimony grant at all, not participating in family trusts or businesses, or alimony calculation not based on any trust income.
Are Prenuptial Agreements Unequal?
Having completed the prenup stage probably gives a sense of relief to most people —particularly to the party needing to protect their interests— trusting that most of the problematic issues faced in a divorce process will be covered in the prenuptial agreement, thus making it uneventful. In reality, that is hardly ever the case, and there are two main reasons this happens. The party that is less favored by the prenuptial agreement usually chooses to store it away and forget about it. So instead of working around the dispositions on this binding agreement as soon as it is recorded, several judges prefer to face the issue while ruling the final stages of the divorce. Therefore it might be months or years later that parties will be required to discuss its clauses and attempt mediation.
Time and again, what heavily weighs on the result of a divorce process is whether the prenuptial agreement has already been enforced or not. Parties end up investing a good portion of their financial assets on expert and legal fees while discussing and analyzing businesses or properties that are not suitable for equitable distribution once the agreement has been enforced.
Exceptions to Enforceability of a Prenuptial Agreement
A divorce process involving a prenuptial agreement starts with the spouse pleading for or against the prenup. Putting away a prenuptial agreement is complicated, as the legislation dictates that prenuptial or premarital agreements are always enforceable, except if the spouse wanting to disregard the agreement can prove with enough burden of proof the following:
1. the agreement was executed involuntarily;
2. the agreement seemed outrageous when initially enforced (the exception is reserved for pre-Amendment prenuptial agreements;
3. the Court has to review excessiveness at the time of implementation), the issue of unreasonable stipulations on a prenuptial agreement needs to be determined by a Court;
4. if said party fits into either one of the following scenarios before the agreement application:
- The party was not granted a fair and complete explanation of the other party’s property, income, and financial obligations.
- The party did not voluntarily and clearly expressed the desire to waive (in writing) all rights to inform about financial obligations or property of the other party aside from what was formally disclosed.
- The party was not properly aware of the financial obligations or property belonging to the other party.
- The party did not seek independent legal advice and voluntarily waived the option to discuss the agreement with an independent legal advisor.
Nevertheless, the agreement is deemed outrageous if it leaves the spouse without reasonable support. This may be the case if the prenup’s terms would have the spouse become a public charge or if the standard of living it would allow is far from what the spouse was entitled to before the marriage.
Requesting to Set Aside a Prenuptial Agreement
Most of the time, the request to put away a prenuptial agreement is part of the “Whereas” clause along with the other requests for support (child support, alimony, restoration of maiden name, equitable distribution, fees). The Whereas clause explains the reasons for the execution of the contract as well as its purpose. According to New Jersey law, alleged fraud must be plead satisfying the elements of the claim.
More often than not, when cases are presented to judges, a party might request to store the agreement and request a further investigation to decide if they can prove the prenuptial agreement should be put away. Judges do allow parties to do this, regardless of the agreements, often including waivers on requiring validations or business appraisals, waivers of getting evidence regarding values included in the provided balance sheets, and waivers of further discovery (further evidence researching).
Matters get more complicated when parties have to spend tens or even thousands of dollars evaluating businesses involved, not having a positive outcome. According to the marriage date and when the complaint is filed, these businesses must be evaluated twice to calculate any increment in the value. However, if an agreement is upheld, it would still not be eligible for distribution.
If the Court arranges a plenary hearing to establish the legitimacy of the prenuptial agreement, there should also be some discovery regarding the stipulations in the agreement in an attempt to point out any irregularities in the agreement, thus having the party relying on the agreement, having to pay an additional amount.
Motions for support pending litigation are often made and thought about seriously when the prenuptial agreement includes a waiver of both alimony and support pending litigation (pendente lite support). If the pendente lite support is greater than what is affordable under the agreement, the divorce case will not settle because the party receiving the support would accept a larger sum than what they are entitled to. Judges will generally rule that support is “without prejudice,” and the financially responsible party will qualify for a credit (if the prenup agreement is enforced).
If you are interested in learning more about prenuptial agreement, pros, cons, and why you should consider signing a prenup before getting married, click the link. You can also discuss your particular case and your needs by contacting our legal team.
Will Your Prenup Stand up during Divorce? Contact our Prenuptial Agreement Lawyers for a Free Consultation
If you or a loved one are going through a divorce process and would like to understand your rights and responsibilities better when writing and enforcing a prenuptial agreement, seek legal advice to discuss the best way to protect your interests.
At the Bronzino Law Firm, we take pride in successfully representing clients in Brick, Sea Girt, Toms River, Wall, Point Pleasant, and across Ocean and Monmouth Counties. Whether you are currently involved in a divorce process or are considering initiating one, do not let a flawed prenuptial agreement affect your estate.