Last week, our blog began discussing how many couples neglect to add executing a prenuptial agreement to their lengthy list of wedding preparations owing to both its decidedly unromantic nature and the mistaken belief that they simply don't need one.
Having established how a prenup can save time, money and energy by setting expectations concerning property division and alimony -- two of the more contentious issues in any divorce -- today's post will shift gears by focusing on some of the requirements that must be met for this document to be considered legally binding.
In general, a prenup will be considered valid and enforceable by a court provided the following elements are present at its execution:
- The prenup should be in writing and signed by both parties, meaning oral prenups are not acceptable.
- The prenup should be executed voluntarily absent coercion of any kind.
- The prenup should be executed before witnesses given the signature and absence of coercion requirements.
- The spouses should each be represented by their own attorney
- The prenup should not be unconscionable (i.e., unbalanced), such that one spouse stands to benefit far more than the other in the event of a split.
Regarding this last requirement, it's important to note that here in New Jersey, this requirement that the prenup not be unconscionable references the circumstances at the time of the execution, not the actual divorce. In other words, it doesn’t matter if a couple divorces decades after the execution of the prenup and their circumstances have changed considerably, so long as the prenup was fair when executed, it will be enforceable.
Here's hoping the foregoing information has proven helpful. As always, consider speaking with an experienced legal professional if you have questions about prenuptial agreements, divorce or any other family law issue.