We have previously blogged about prenuptial agreements in New Jersey. Recently, an amendment to the premarital and pre-civil union agreement law was adopted, changing the court’s analysis when determining whether a prenuptial agreement is enforceable.
Prior to the amendment, prenuptial agreements were not enforceable in New Jersey if the party opposing enforcement executed the agreement involuntarily, if it was unconscionable at the time that the other party was seeking enforcement, or if the agreement was unconscionable when it was executed.
The amendment deletes the portion that deemed a prenuptial agreement unenforceable if it was unconscionable at the time enforcement was sought. It adds a sentence that states “An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.” Those circumstances are the same as they were previously, which are that the party opposing enforcement:
(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4) Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Thus, parties can no longer claim that a prenuptial agreement is unenforceable because it is unconscionable at the time enforcement is sought. Clearly, this amendment strengthens the enforceability of prenuptial agreements a great deal, especially given that the party opposing enforcement has the burden of proving the agreement’s unenforceability.
If you have questions about the enforceability of your prenuptial agreement, please contact the attorneys at Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.
