When Governor Christie signed amendments to R.S.37:2-32 and R.S.37:2-38 into law back in 2013, it had a profound effect on the enforceability of prenuptial agreements. The change largely pertains to the definition of a single word that determines whether the negotiation process is fair or unfair to both parties.
Each Denville divorce attorney at our firm can attest to the fact that the new law dramatically changes conditions under which the courts can set aside the provisions within prenuptial agreements. However, we continue to believe that attention to detail during the drafting of this contract continues to provide fair protections for our clients.
Unconscionable Agreements are Unenforceable by Law
The courts can set aside the provisions of prenuptial agreements if, when spouses attempt to enforce an agreement during divorce, they deem the agreement to be unconscionable at the time. However, that term has been significantly re-defined under the new law.
Prior to the changes, the term, unconscionable was defined to protect less wealthy spouses by ensuring that at the time an agreement is enforced, it would not leave the spouse in any of the following circumstances:
- With no means of reasonable support
- Considered a public charge
- Living under standards that are far below those enjoyed prior to marriage
That definition of unconscionable has been eliminated under the new law, which now focuses solely on conditions at the time the agreement was signed (executed). In other words, instead of considering conditions at the end of a long-term marriage to decide if an agreement can be enforced, it makes this determination based on whether both parties received fair treatment when they first executed the contract prior to the marriage.
Spouses seeking to set aside premarital agreements must prove that the agreement was unconscionable because at least one of the following situations existed when they signed the agreement:
- They were not provided full and fair disclosure of important financial information.
- They did not voluntarily and expressly waive the right to that disclosure in writing.
- They did not have adequate knowledge of that information, nor could they be expected to have the knowledge.
- They did not consult with independent counsel, but they also did not waive the right to independent counsel in writing.
Well-Drafted Prenuptial Agreements Protect Spousal Interests Regardless of Timing Issues
The new law definitely changes the way courts enforce prenuptial agreements. However, as long as both parties abide by the legal requirements for drafting these contracts, they can still provide effective protections in the event they need to be enforced as part of the divorce process. Perhaps the most important requirement is to enlist the support of a lawyer with extensive experience in creating prenuptial agreements.
Of course, the best possible outcome is a happy marriage that never requires the enforcement of a prenuptial agreement. However, at Riordan & Associates, LLC, we address every detail to help ensure that our clients do not experience financial surprises in the event their marriage does not work out as planned. Call us or use our convenient online contact form to learn how we can help protect your rights with this important document.