February 2023 - Do You Need a Lawyer for a Prenuptial Agreement?

A prenuptial agreement is a contract entered into prior to marriage detailing how a couple wants their assets and liabilities to be split should their marriage end in divorce. This agreement is only valid if both parties agree to its terms.

Without a prenup, distribution of assets is subject to the laws of the state where the couple resides and at the discretion of the judge given the confines of those state laws. Community property states will typically divide assets on a 50/50 basis, while equitable distribution states, like New Jersey, will distribute assets according to what a judge sees as fair after consideration of various factors.

At one time prenups may have been something considered only by the rich and famous. Today, however, more couples delay marriage until after they have established their individual careers and prenuptial agreements are more common.

Having a prenup can reduce the expense of a drawn-out divorce. It allows a couple to make decisions based on what they consider to be fair, rather than under the duress and emotions that typically come with the end of a marriage.

Important things to consider when drawing up a prenuptial agreement:

• Separate and marital property should be clearly identified; a financial disclosure statement from each party identifying all assets and debts should accompany these contracts
• Provisions for dividing debts can be included
• So can provisions relating to spousal support
• Provisions relating to child custody, visitation or child support cannot be included
• Clauses relating to specific tasks required of either spouse should be avoided
• All clauses in a prenup are subject to review by a judge

Although a prenuptial agreement can be drawn up without an attorney, it is important to note that every state has specific laws regulating what it considers to be a valid agreement. (New Jersey’s requirements can be found under the Uniform Premarital and Pre-Civil Union Agreement Act). To ensure your prenup is valid under your state law, it is advisable to have the agreement reviewed by a Family Law attorney.