Written by Ronald Lieberman, Esq. | Adinolfi, Lieberman, Burick, Roberto & Molotsky, P.A., AAML New Jersey Fellow

A prenuptial agreement is a binding, written document (contract) signed by two people before their wedding to control their rights and obligations in ways which may be different than what the law would compel on those topics. This contract protects assets and sets forth spousal support or maintenance obligations in case of a divorce. There are some things to know before signing a prenuptial agreement.

CHILDREN ARE NOT A PART OF THE AGREEMENT

Regardless of the desires of the parties, a prenuptial agreement cannot dictate anything having to do with children (such as child support or child custody), whether born before or after the wedding. But, you can dictate financial considerations for children from previous relationships.

AN ATTORNEY IS CRITICAL BUT NOT REQUIRED

You can enter into a prenuptial agreement without an attorney but going down that path can lead to complications. Your attorney understands the details of the law and will ensure you have fair representation in your prenuptial agreement. The attorney will work to make sure the prenuptial agreement is as “ironclad” as possible by detailing everything out in a way that protects your rights and your assets.

FULL DISCLOSURE IS REQUIRED OF INCOME, ASSETS, AND DEBTS

The purpose of a prenuptial agreement is to keep assets and debts separate and to dictate spousal support/maintenance in case a marriage fails. So, without a full and complete disclosure of all sources of income (earned and unearned), assets, and debts, the prenuptial agreement will likewise fail and assets and debts could end up being divided.

By disclosing income, assets, and debts, you are protecting them. Such full financial information is important for a healthy relationship and essential for the agreement's validity.

AGREEMENTS IN NEW JERSEY MUST BE FAIR AT THE TIME OF THEIR ENTRY

In New Jersey, a prenuptial agreement must be fair at the time of its entry, which may be different than how the agreement will be interpreted at the time of a dissolution.

Fair does not always mean there must be a proportionate division of assets and debts, or spousal support/maintenance in line with New Jersey law. But fair will mean a full disclosure of income, assets, and debts, and a relatively equal bargaining power between the parties. The timing of the signing of the prenuptial agreement compared to the date of marriage will also be important in determining fairness.

CONSIDER ENTERING INTO A PRENUPTIAL AGREEMENT WELL IN ADVANCE OF MARRIAGE

One of the worst ideas is to enter into a prenuptial agreement close to the date of marriage. But you will need to hire an attorney, and to discuss the issues with him or her. You will need to compile the information about income, assets, and debts. Your attorney may not be able to provide “laser focus” on your matter because of their obligations and commitments to other clients. So, you should be entering into a prenuptial agreement sooner rather than later compared to the wedding date is the best policy.

PRENUPTIAL AGREEMENTS ARE NOT COERCIVE

You can control the division of assets and debts, and whether and how spousal support/maintenance will be paid. You cannot dictate the behavior during the marriage of your soon-to-be spouse or limit him or her in any way as to how they live their lives during the marriage. You cannot mandate children be born or adopted, or similarly preclude that option. Any such action will lead a judge to invalidate your prenuptial agreement.

Are you looking for more guidance on prenups? Contact one of our Fellows!