A prenuptial agreement, often called a “prenup,” is a legally binding contract that outlines the financial rights and responsibilities of each spouse in the event of divorce.
While prenups are generally upheld in New Jersey, there are situations in which the court may void them or deem them unenforceable. It is important for couples in New Jersey to carefully consider certain factors when creating a prenuptial agreement.
Lack of full disclosure
For a prenup to be valid, both parties must provide full and honest financial disclosure, without hiding assets, debts or income from the other. Otherwise, a court may invalidate the agreement.
Coercion or duress
If one spouse pressures or forces the other into signing the prenup against their will, a court may consider it void. Both parties must enter into the agreement willingly.
Unconscionability
A court may find a prenup that is grossly unfair or one-sided unconscionable. If the terms heavily favor one spouse and leave the other with little to nothing, a court may refuse to enforce it.
Invalid provisions
A prenup cannot include provisions related to child custody or child support. If it does, the court may void those clauses, but the rest of the agreement may remain valid.
Fraud
If one spouse engaged in fraudulent behavior, such as forging the other’s signature, the court could invalidate the prenup.
Mental capacity
When one spouse lacks the mental capacity to understand the agreement at the time of signing, a court may void the prenup. This could be due to factors like intoxication or mental illness.
Illegal clauses
A prenup can not contain illegal provisions, such as encouraging illegal activities or violating public policy. The court may find that the agreement is unenforceable in such circumstances.
No written agreement
In New Jersey, prenuptial agreements must be in writing and signed by both parties. Verbal agreements are not legally binding.
Over 40% of new marriages end in divorce. The rate rises to 60% for second marriages and nearly 75% for third marriages. Prenuptial agreements can provide financial protection; however, to ensure the validity and fairness of a prenup, it is important that couples engage in open and honest communication when drafting or signing the document.