Prenuptial Agreements

For some, before the “I do” comes the “sign here.” Prenuptial agreements may not be the stuff of great romance, but they are a necessary evil if you have assets to protect.  So how iron-clad are prenuptial agreements? Just how much protection does a prenuptial agreement actually afford?

The answer depends largely on when you entered into the prenuptial agreement. On June 27, 2013, Governor Christie signed a new law that strengthens the enforceability of prenuptial agreements. Prenuptial agreements entered into or revised after June 27, 2013, will be more difficult for a court (and your spouse) to set aside.

The old law (which still governs most prenuptial agreements) provided that a prenuptial agreement could be set aside if the agreement was “unconscionable” (i.e. shocking to the conscience, grossly unfair) at the time it was entered into OR at the time a party sought to enforce it (usually during a divorce). That essentially meant that years down the line, a party could claim that even though the agreement may have been fair before the parties married, by the time the parties were divorcing and the court was asked to rule on it, the agreement had become unconscionable. This created a lot of instability in New Jersey’s prenuptial agreements; some Judges were reluctant to enforce them at all.

Since June 27, 2013, things have changed. The legislature deleted the provision which allowed courts to set aside a prenuptial agreement if it was determined to be unconscionable at the time of enforcement. Now, the party wishing to set aside a prenuptial agreement has the burden of proving, by clear and convincing evidence, that either he or she entered into the agreement involuntarily or the agreement was unconscionable at the time it was entered into (i.e. before marriage).

Date Published: April 4, 2017


Written by: Alexandra Rigden