Over the past several years, the frequency of which parties have entered and voluntarily executed prenuptial agreements has increased dramatically. There are several advantages of entering into a prenuptial agreement. The most significant may be the protection of one’s assets from the possibility division of assets that may occur in the event of divorce. However, despite the many advantages and protections that a prenuptial agreement provides, the validity of a prenuptial agreement has been disputed. This article will discuss some of the advantages of executing a prenuptial agreement and the enforceability of a properly executed prenuptial agreement.
There are many reasons why a party may come to a decision that entering and executing a prenuptial agreement is the right thing to do. The factors that lead to the execution of a prenuptial agreement depends on the parties and facts and circumstances involved with their particular matter. The most common reason people enter into a prenuptial agreement is protect their valued assets such as real estate, businesses, investments and foreign assets, and much more. Some people tend to enter into prenuptial agreement as to avoid spousal support disputes that may arise upon the onset of a divorce proceeding should an individual choose to pursue that route. Other parties choose to enter and execute a prenuptial agreement so as to avoid any dispute that may arise as to the division and distribution of assets. These protections are available to deter the potential of highly disputed and often times litigated matters that can arise in the event of divorce. Despite these protections, some individuals do still dispute the validity of an executed prenuptial agreement. Often times the advantages of entering a prenuptial agreement outweighs the possibility of the prenuptial agreement being contested.
The enforceability of a prenuptial agreement executed by the parties can often times be highly disputed and very heated issue. There are important issues that the parties and counsel must understand in order for a prenuptial agreement to be properly negotiated and drafted in order to potentially withstand any disputes or contests to the validity and enforceability of the prenuptial agreement executed by the parties. The case of Marschall v. Marschall, 195 NJ Super 16 (Ch. Div. 1994) specifies certain criteria for the enforceability of prenuptial agreements. In order for a prenuptial agreement to be properly drafted it is necessary that both parties to the prenuptial agreement be represented by independent counsel. Secondly, the prenuptial agreement must not be unconscionable. See Newman v. Newman, 653 P.2d 728 (Colo.Sup.Ct. 1982). In essence fairness is the key. Thirdly, all assets and liabilities must be disclosed to the other party so as to avoid hiding or concealing assets. See D’onofrio v. D’onofrio, 200 NJ Super 361 (App. Div. 1995). Lastly, reasonable timing of the execution of the prenuptial agreement is a must. Complications can arise where duress or pressure are used as tactics to further the execution of a prenuptial agreement. See DeLorean v. DeLorean, 211 NJ Super 432 (Ch. Div. 1986).
If you are contemplating entering into a prenuptial agreement for any reason it is best that you seek the guidance and counsel from a New Jersey Divorce Attorney. An attorney can properly advise your and communicate with you any issues that are possible to arise. Furthermore, your New Jersey Divorce Attorney is best equipped with the knowledge and experience to negotiate and draft a prenuptial agreement on your behalf with your best interest in mind.