Now that the basic framework of a New Jersey prenuptial agreement is understood, onto a primary question: what should you do if your spouse seeks a prenuptial agreement?
Firstly, it’s important to not take the suggestion of a prenuptial agreement personally or as an indictment of your relationship or your fiancée’s trust in you. There are many reasons to seek a prenuptial agreement, and not all of them are negative. Viewed through the proper lens, a prenuptial agreement can be mutually beneficial, and isn’t finding a mutual benefit one of the key reasons you are contemplating marriage in the first place?
As noted above, prenups are thankfully a growing trend, one that can provide some control to both parties to determine what would occur in a worst-case scenario outcome. For risk-adverse people (and with divorce rates still somewhat high), this may simply be a reasonable request).
If you are concerned about signing a prenup, then you should discuss your concerns with your fiancée and get a sense of their motivations. It may be that it is not necessary to pursue a prenuptial agreement. If they persist, make sure you both have an understanding of the process to be utilized and the reasons behind the request so as to not strain the relationship.
If your spouse does insist on negotiating a prenuptial agreement, it’s important that you select your own independent counsel to review the agreement and to help you negotiate it, as necessary. Do not allow your spouse or their attorney to select your attorney for you. It may seem ok now but will only lead you to feel cheated and upset by the process later on at the time of enforcement (even if everyone is operating in good faith).
Make sure your attorney fully explains the process to you along with the specific repercussions of what you are signing. You should have a firm understanding of what the law would be absent a prenuptial agreement versus the language contemplated, so you can understand what you are gaining (or losing) by entering into the agreement versus the natural status of the law. For instance, alimony is available to many parties to a divorce in New Jersey. In general terms, the greater the disparity in income between the parties coupled with the longer the duration of the marriage, the more a party may have alimony exposure to the other.
A prenuptial agreement may call for a permanent waiver of alimony. In such a situation it’s important to recognize what your expected exposure (or benefit) from alimony may be. It may be difficult or impossible to fully understand (as you are negotiating in the present an unknown future), but it’s important that you view the more realistic potentialities and have an understanding of what you will be giving up (or gaining) by that specific language.
You should review the entire contract through that prism and then view it globally to determine if it is reasonable and fair. To be enforceable, there is no requirement that the agreement be fair, just that it not be so unfair as to be “unconscionable” at the time the agreement is entered into.
You should work with your attorney to provide financial documentation (and to review financial documentation from your spouse) as this is a requirement of a prenuptial agreement and will help you determine whether or not proposed prenuptial agreement language is fair.
In my opinion, you should also not be afraid to voice your concerns to your lawyer and to negotiate the matter (even aggressively if so required). If your fiancée is the one seeking a prenuptial agreement then their feelings should not be hurt if you are seeking to negotiate an agreement that is fair to both of you.
Your fiancée is looking to protect their interests, or they wouldn’t be asking you to sign a prenuptial agreement. Likewise, you should take this opportunity to ensure that your interests are also being protected. You will only regret it later on if you let the bliss of upcoming nuptials silence valid concerns. By that point in time it will be too late to wish the agreement away, as it will likely be binding.
As with most legal documents, you should not sign anything or waive any rights (such as a right to independent legal counsel) without first meeting with your own attorney and having your attorney review the agreement and advise you regarding its pros, cons, and legal meanings.
If you’re contemplating marriage or remarriage, then you should consider your circumstances and that of your significant other to determine if it is worth the time and expense of negotiating a prenuptial agreement. I have heard too many clients say they wish they had gotten a prenup in place before they got married to not believe in prenups as an important tool for anyone contemplating marriage. We often go into a first marriage with some naivety, and a lawyer can help you be grounded so that you are neither overly suspicious nor overly trusting.
Partner with Carl Taylor, Esq.
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