Prenuptial agreements used to be confined to the realm of the super rich or Hollywood stars. Now, this type of agreement between couples thinking about marriage is much more commonplace. People are choosing to marry later, taking
Second (or subsequent) marriages aren’t uncommon. For many brides and grooms in this situation, it’s important to protect assets they accumulated before their new marriage, just in case of divorce. If you are considering marrying and have children from a previous marriage or relationship, you may want to ensure that certain personal items, property or a pool of money is earmarked for your children, as opposed to your spouse when you pass on. You may own a business that you have built up over many years and want its assets to pass to your children on your death. A prenuptial agreement can be used to clarify these details.
What You Should Consider When Drawing up a Prenuptial Agreement
If both of you agree that you want to draw up a prenuptial agreement, there are a few “ground rules” or considerations that should be in place to ensure that the agreement will stand up in court. Prenuptial agreements are no longer considered to be ironclad, and they can be overturned by a judge if certain criteria are not met. Keep these items in mind:
1. Consult separate attorneys.
One of the most important considerations when drawing up a prenuptial agreement is that each person gets completely independent legal advice. This consideration is so crucial that the prenup could be overturned later if it was contested and the Court discovered that this vital point was skipped.
If the agreement is ever challenged, a judge will want to know if both parties consulted an attorney. If they didn’t get legal advice, the judge will need to be convinced that each one “freely and knowingly” waived their right to be represented by an attorney.
2. Know what situations you want your prenup to cover.
Before you can start including any clauses at all in the agreement, you need to decide what types of circumstances you want it to cover. For example, you could specify different ways to distribute assets if you divorce as opposed to only separating.
“Separation” means a legal separation, so you and your spouse would be living separately (physically and financially) without formally ending your marriage. This can be an option for some couples for religious or other reasons.
Your attorney can also advise you about the advantages of including provisions for dealing with how you would like to divide your assets if you pass away in the prenuptial agreement.
3. Provide full and complete disclosure of your finances.
The only way to come to a fair prenuptial agreement is to be completely open about your financial situation. This is not the time to be trying to mislead, conceal assets or debts. Be prepared to provide recent statements for bank accounts, investment accounts and pay stubs. You’ll also want to get appraisals for your vehicle and any other big ticket items you own.
All your liabilities will need to be listed separately. These include the mortgage you are paying on your home (if any), outstanding loans for your vehicle or education, personal loans, credit card debt, lines of credit and so forth.
Full disclosure is also required by law (The NJ Uniform Premarital Agreement Act).
4. The prenuptial agreement has certain legal restrictions built into it.
There are certain things that you can’t include in a prenuptial agreement. For one thing, you can’t use it to agree that one spouse doesn’t have to pay child support to children born during the marriage. You can’t decide in a prenup who will have custody of the children if you divorce. A biological parent has the legal responsibility to support their children, and this can’t be signed away under a prenup.
Making decisions about children who may not be born yet with a prenuptial agreement would be in violation of public policy. That part of a prenup would be struck down by a court.
5. The terms of the prenup need to reflect that a spouse’s circumstances may change over time.
Before picking up a pen to sign a prenuptial agreement that may have a significant bearing on your future, consider that your personal circumstances can change. If you are currently employed or running your own business, it may seem like a good idea to agree to give up all claims to future spousal support. If you were to become unable to work due to illness or disability, this could become an issue in the future.
An experienced attorney can advise you about all aspects of drawing up a prenuptial agreement, including whether you even need one. Rodríguez Family Law is proud to help families find new beginnings, but we’re also happy to help you make smart moves that will protect your future. Call us today at 862-241-1228 or send us a message here.