Tuesday, January 28, 2014

Can your Premarital Agreement Hold Up in Court?

Premarital agreements have gained popularity over the last twenty years. Although the concept of making important decisions regarding what happens to your finances when you marry is a sound preventative measure, not all such agreements are structured or executed in a way that has legal integrity.

New Jersey state legislature has recently enacted a new law (NJSA 37: 2 - 38) that makes a premarital or pre-civil union agreement harder to break or revise.

For a premarital or pre-union agreement to hold up in court it needs to meet the following requirements, to not be considered unconscionable.

Both parties must enter the agreement willingly — an act of rushing the marriage or coercion to sign allowed the court to render the agreement void

Both parties must have provided full & fair disclosure of earnings, property and obligations, or waived their right to same, beyond what was provided

The agreement must be witnessed and signed

The agreement must be fair — if the agreement rendered one partner destitute and left the other with a large portfolio of assets the court could toss it out

The parties must have had counsel or waived their right to independent legal counsel.

The new law makes it more difficult for a couple to seek a revision in the agreement if circumstances have changed — for example if one partner has become disabled or has suffered a significant loss in revenue.

Some family law attorneys are voicing concern that couples might shy away from seeking a premarital agreement as the terms become more immutable. Others say it has negated prior case law and is now inconsistent with the uniform Premarital Agreement Act. In general, the advice from the legal profession is proceed with caution and seek legal advice before signing an agreement.

It is unclear as to whether the new law is good or bad, but one thing is certain — it reinforces the need for couples to investigate the terms of any premarital, pre-civil union or postmarital agreement thoroughly before signing, or before relying on an agreement’s contents to protect them in divorce court. For legal advice you can trust, speak to the family law attorneys at Murano & Roth, LLC. We can help you take control of your life.

This blog posting and the information on our website is for general information purposes only. Nothing within it, within any responses, comments, emails, answers, blogs or attachments, should be considered legal advice. Our website and our blogs, including this blog, does not form any attorney client relationship, and this office does not represent you in any way. Keep in mind that since only very general information is provided on our website and within our blogs, you cannot rely upon any of the information as legal advice, as it might not apply to, or be accurate relative to your specific situation and facts.

By Jason D. Roth

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