Prenuptial agreements, also known as antenuptial or premarital agreements, have long been recognized as valid and enforceable under New Jersey law. The law regarding prenuptial agreements in New Jersey has remained relatively unchanged since the adoption of the Uniform Premarital Agreement Act in 1985, codified in New Jersey Statutes at 37:2-21—41. However, a major change was enacted last year, when SB 2151 amended certain sections of the law regarding challenges to an agreement’s enforceability. Because of this change, prenuptial agreements are now more likely to be upheld and enforced when challenged in New Jersey courts.
New Jersey’s Uniform Premarital Agreement Act was first adopted in 1988. This law sets out what is required for a valid premarital agreement in New Jersey. First of all, the document must be in writing and signed by both parties. A statement of assets must also be prepared and attached to the Agreement, ensuring that each spouse has provided a fair and reasonable disclosure of their financial information to the other spouse.
Prior to the new law, a prenuptial agreement could be challenged on several grounds, if the person challenging the agreement could prove one of the following by clear and convincing evidence:
- The agreement was not signed voluntarily
- The agreement was unconscionable
- The agreement was not based on full and fair disclosure of assets
- The party did not have an opportunity to consult with independent counsel prior to signing
An unconscionable agreement was defined as one which would leave the spouse without reasonable support, would cause the spouse to go on public assistance, or would leave the spouse with a standard of living far below the person’s standard of living prior to marriage. Also, a party alleging unconscionability could argue that the agreement was unconscionable at the present time when it was sought to be enforced.
On June 28, 2013, SB 2151 amended sections 37:2-32 and -38 of the law. This bill changed the definition of unconscionable. Basically, an agreement is now unconscionable if it meets any of the other criteria for invalidating a prenuptial agreement. Also, the bill changed the window for looking at unconscionability. Now, the agreement must be shown to be unconscionable at the time it was executed, not when enforcement is being sought.
This change applies to prenuptial agreements entered into after the June 28th effective date of the new law. For older agreements, the provisions of the law before the amendment application. Most people agree that the changes will make it harder to challenge a prenuptial agreement as unconscionable and that more premarital agreements will therefore be enforced by the courts than they have been in the past. If you are challenging or defending the enforceability of a premarital agreement, contact an experienced New Jersey family law attorney who can review the agreement and the facts surrounding its execution, and let you know what your rights are concerning the agreement.