Prenups For High-Asset Second Marriages in the State of New Jersey
As part of the New York Metropolitan Area, Bergen County is home to many high-income individuals. When these wealthy men and women marry for the second time, it is not unusual for one or both parties to have assets to protect. A good way to accomplish this goal, which is especially important when there are children from a previous marriage, is with a Bergen County prenuptial agreement.
When both parties have substantial financial, real estate, and other assets, the desire for a prenuptial, or antenuptial, agreement is often mutual. In situations where one future spouse has much more than the other, addressing the need for the document may be more difficult. However, the sooner you bring up the subject after making the decision to marry, the better.
New Jersey Prenuptial Agreements: Issues Addressed
The main reason couples choose to have a prenup is to protect their assets in case of divorce or death, In addition to a complete financial disclosure, which must be attached to the document, these are among the issues that are often addressed:
- one party’s interests in a family business;
- existing contractual obligations;
- trusts for children or other family members;
- rights regarding joint and separately owned property;
- division of property upon separation, divorce, death or another event;
- modification or elimination of spousal support; and
- the necessity of a will or trust to carry out the provisions of the document.
The agreement goes into effect upon marriage, but a time limit stating that the document will become ineffective after a certain period of time may be included.
The Elective Share
New Jersey law states that a surviving spouse is entitled to a one-third share of their estate when the other spouse dies. Unless addressed beforehand, this may possibly include assets that were left in trust for a child. A prenup can ensure that the assets of both spouses are distributed according to their agreed upon wishes.
Typical Assets Protected by a New Jersey Prenup
Bergen County high-asset couples might want to protect these and other assets:
- financial interests;
- real-estate properties;
- businesses;
- family-owned business;
- professional practices;
- trusts for children;
- inheritances;
- stocks, bonds, and other investments;
- pensions; and
- art collections and other valuables.
Limitations of a Prenup in New Jersey
In New Jersey, the best interests of the child are always of primary importance. For that reason court-ordered child support, child custody, parenting time, and other matters that affect children cannot be predetermined by a prenuptial agreement.
Crafting a Legally Enforceable Document
There are certain requirements that must be met for a prenuptial agreement to be legally enforceable:
- The agreement must be in writing.
- Each party must be represented by independent legal counsel unless he or she voluntarily and expressly waives this right in writing.
- A detailed statement must be attached to the document and must include the following:
- assets;
- credit card and other debt;
- child support and alimony obligations from a previous marriage; and
- any disabilities.
- The agreement must be signed by each party voluntarily after being given sufficient time to study it.
- The agreement must not be unconscionable.
What Constitutes an Unconscionable Agreement in New Jersey?
In The State of New Jersey, an unconscionable agreement is defined as one that would have one or more of the following results:
- It would render a spouse without means of support.
- It would cause a spouse to become a public charge.
- It would provide a spouse with a standard of living much lower than he or she enjoyed before the marriage.
Challenging Enforceability
If any of the requirements of the agreement were not met, then its enforceability may be challenged.
Burden of Proof
In New Jersey the burden of proof is on the party who is alleging that the document is unenforceable. That party must convince the court “by clear and convincing evidence” that it should set aside the agreement.
The challenger must prove that one of the following facts is true:
- He or she did not sign the agreement voluntarily.
- His or her spouse did not fully disclose all assets and financial obligations; he or she could not reasonably have obtained the information; and he or she did not waive the right to that information.
- He or she was not represented by independent counsel and did not waive in writing the right to such representation.
- The agreement was unconscionable at the time the it was signed.
There was an important change in the “unconscionable provision” as a result of the Amendment to the New Jersey Prenuptial Agreement, signed into law by Governor Christie in 2013. Before that amendment, a spouse could allege that the document was unconscionable at the time enforcement was sought. The change in law made it necessary to prove that the agreement was unconscionable at the time it was signed. This is more difficult to do.
Speak With a New Jersey Prenuptial Agreement Attorney
Prenuptial agreements aren’t for everyone, but they are suitable for many mature couples with substantial assets, especially if there are children from a previous marriage.
If you decide that a prenuptial agreement is appropriate for you and your prospective spouse, then each of you should contact your own New Jersey Prenuptial Agreement Lawyer. That attorney will help you analyze your situation, explain all you must do to make the document enforceable, and craft a document that meets your needs.
The sooner this agreement is dealt with, the sooner you can get on with the enjoyment of planning the details of your upcoming marriage.
The NJ prenuptial agreement lawyers at Aretsky Law Group, P.C., are experienced in drafting prenuptial, post-marital, and other documents.
Call us 24/7 at 800-537-4154 as soon as possible to get started.