Some people (often those with businesses or other assets of value, second marriages, etc.) want to enter into a premarital agreement before getting married; others do not wish to marry but want to live together and desire to enter into an agreement that governs their rights and obligations to one another while they live together (cohabit) and in the event of a divorce. It is critically important in either premarital agreements or cohabitation agreements that the parties allow sufficient time before the wedding or cohabitation commences to properly negotiate the terms of such agreements. All of the attorneys in the firm have experience in negotiating and drafting such agreements. Our attorneys also have experience in litigating the enforceability of such agreements.
By John Jones, Esq.
As in many other areas of Family law, the answer is “it depends.” A young couple, just starting their careers, with no children and no assets, probably do not need such an agreement. However, a premarital agreement may be a good idea where one person has significant income, the potential for a large inheritance, has been married before or where there is a significant age disparity between the parties.
Agreements can deal with any issue the parties reasonably anticipate may arise in their relationship. For example, an agreement can set forth the relative rights and obligations of the parties for support or division of property in the event their relationship fails. An agreement can also deal with the death or disability of one of the parties, the length of time the agreement is to last or how it can be terminated or amended by the parties.
A statute in New Jersey governs such agreements and specifically applies to both traditional marriages and Civil Unions. It says that for such an agreement to be enforceable:
- it must be entered into voluntarily;
- it cannot be deemed to be unconscionable at the time enforcement is sought;
- prior to the execution of the agreement there was complete and honest disclosure of the earnings, assets and debts of each party to the other, or each party had the opportunity for such disclosure but expressly waived that right in writing, or they had adequate knowledge of these facts; and
- prior to signing the agreement each party had a reasonable opportunity to consult with an independent attorney or waived that opportunity in writing.
It is important to note that the question of whether the agreement is unconscionable or not is determined at the time enforcement is sought. This means the parties can do everything exactly according to the statute when they enter into the agreement but because of events subsequent to the execution of the agreement, it becomes unenforceable. Thus, an agreement may not be enforced where one of the parties has no means of support, would otherwise become a public charge or subject to a standard of living far below that which was enjoyed before the marriage or Civil Union. Anyone contemplating a premarital or pre Civil Union agreement must consult with an experienced Family Law attorney to assist them in understanding, reaching and preparing such an agreement.
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