The point of a prenuptial agreement is to have some security that if couples ever need a divorce, the parties know what some of their rights are. By making those decisions in advance, the logic is that there will be less fighting later, and the parties go into the marriage knowing to some extent what property will be protected from division if there is a divorce.

Challenging Prenuptials

Prenuptial agreements are often challenged when there is a divorce—the party that seemingly received the shorter end of the deal is usually the one challenging the agreement. If that happens, the first question the parties may have is whether the prenuptial is valid or enforceable not.

The problem is that the parties can spend a lot of time and money arguing about divorce matters, only to find at the time of trial that the court feels the prenuptial is enforceable. That essentially wastes all the time and money spent on litigating things that are resolved by the prenuptial agreement.

It would be helpful if courts would first rule whether or not the prenuptial agreement is enforceable. Then, depending on the ruling, the parties could then argue over the substance of the divorce, if the prenuptial is found to be unenforceable.

The problem is that there is no law or rule that says when a court has to rule on enforceability.

Family law attorneys in this situation should ask the court for an advanced ruling on enforceability, so the parties know in advance what issues need to be litigated and tried, and which are finally resolved by the prenuptial agreement.

Invalidating an Agreement

It is not easy to have a prenuptial found invalid. We value the certainty and security that contracts provide, and if it were easy to overturn a prenuptial, there would be little point in even having them.

A party seeking to set aside a prenuptial needs to show:

  • That the agreement was entered into involuntarily, or
  • That the agreement is unconscionable—that is, so far favoring one party over the other that it would be unfair to even enforce it, or that the agreement would leave a spouse destitute, or in a living condition far below what was enjoyed by the parties during the marriage
  • That a party did not receive full disclosure from the other spouse before the agreement was signed, which would prevent the party from having the full knowledge needed to knowingly enter into the agreement.

The party must also show that he or she did not waive the right to those disclosures, and did not know of the other party’s finances or assets.

Parties should be ready to expect a challenge to a prenuptial agreement upon divorce. This is why it is so important to get the agreement done properly, before the marriage.

Contact our New Jersey Divorce attorneys at The Law Office of Agnes Rybar LLC to help you draft your prenuptial, or to evaluate its effectiveness or enforceability in your divorce case.

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The Law Office of Agnes Rybar, LLC, in Toms River, New Jersey, serves clients throughout Ocean County, Monmouth County and elsewhere in South Jersey and along the Jersey Shore, including many in Forked River, Brick and Lakewood.

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