Prenuptial Agreements/Pre-Union Agreements

A prenuptial agreement (also called a premarital agreement) or a pre-union agreement is a written agreementbetween 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.

Parties to a prenuptial agreements may contract to address:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including the parties’ personal rights and obligations, not in violation of public policy.

New Jersey prenuptial agreements are not permitted to address the custody or support of children. If one party to a prenuptial agreement files an action challenging the enforceability of the agreement, the court will require the party challenging the agreement prove that:

1. the party executed into the agreement involuntarily;
2. The agreement was unconscionable at the time enforcement was sought
3. 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.
4. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law.