Prenuptial and postnuptial agreements are legal contracts that govern the equitable division of property and alimony in New Jersey divorce cases. These contracts do not govern child custody nor child support. Parents can only bargain away the rights that apply to them – not their children. A prenuptial agreement is entered into before the spouses marry. A postnuptial agreement is entered into after the spouses marry and before they divorce.
People who are about to marry or recently married may consider a prenuptial (prenup) or a postnuptial (postnup) for several reasons:
- One of the people in the relationship has significant assets such as a business, a home, or substantial bank accounts.
- One of the people in the relationship was married before. People who have been divorced once generally understand that a well-crafted prenup or postnup can avoid a lot of stress and worry if the new marriage doesn’t last.
- One of the partners to the new marriage has children from a prior marriage.
Prenuptial and postnuptial agreements determine in the event of a divorce:
- Who keeps the marital home?
- Who keeps any businesses a spouse was operating at the time of the divorce?
- Who keeps the retirement accounts?
- Who keeps any financial accounts or anything else of value?
- Whether a spouse will receive alimony, the type of alimony, the amount of alimony, and the length of the alimony payments.
Generally, prenups and postnups are presumed to be valid. The question – Can a prenuptial agreement be voided? – depends on whether there are exceptions. Some of the reasons prenups and postnups may be ruled invalid include the following:
Can a prenup be voided if the agreement was signed under duress?
A family court judge may void a prenuptial agreement or postnuptial agreement if the less financially secure spouse was improperly pressured into signing the agreement. An example of duress is when a partner threatens to disclose something private about the spouse or to call off the marriage the night before the wedding – to pressure the other spouse to sign.
Can you void a prenup if you did not have representation when it was signed?
A New Jersey family court judge deciding – Can a prenuptial agreement be voided? – will be concerned about whether the less financially secure spouse understood her/his rights at the time the contract was signed. Each spouse should have the full chance to review the terms of the agreement with experienced New Jersey divorce counsel. If, for example, a spouse clearly didn’t have the funds to hire a lawyer at the time of the signing, the agreement may be invalid.
A failure to disclose assets or other financial interests
A family law judge deciding the question – Can a prenuptial agreement be voided? may invalidate a prenuptial or postnuptial agreement if the spouse seeking to affirm the agreement wasn’t honest with the less fortunate spouse. Each partner to the prenuptial agreement must honestly disclose all their assets (including assets in other states), the true value of the assets, and the value of any debt obligations they may have too.
Can a Prenup be Voided for Unconscionability?
New judges understand how equitable division of property claims and how alimony claims are usually decided. They also understand that prenuptial and postnuptial agreements usually favor one spouse over the other. Still, judges deciding the question – Can a prenuptial agreement be voided? – will likely consider the overall fairness of the agreements. If the agreement is oppressive, they may invalidate the agreement on the ground that enforcing it would be unconscionable. For example, if the spouses were married for a long time and one spouse is disabled, the court is going to review whether a prenuptial agreement that gives everything to a non-disabled spouse and doesn’t provide a dime in spousal support – should be ruled unconscionable.
Can a Prenuptial Agreement be Voided due to age?
If a spouse was a minor at the time of the signing of the prenuptial agreement, a family law judge – deciding the question – Can a prenuptial agreement be voided? – may invalidate the agreement on the basis that the rights of minors cannot be bargained away without the consent of a parent or a guardian.
At DeTorres & DeGeorge Family Law, our family lawyers have been advising spouses for 30 years. We fight aggressively to assert your rights to an equitable division of property, alimony, and other divorce rights. We understand how to respond when clients ask – Can a prenuptial agreement be voided? To speak with a caring strong New Jersey divorce lawyer, call us at 908-691-2104 or fill out our contact form to schedule an appointment. We have offices in Clinton and Morristown.