Prior to the walk down the aisle for the happiest day of their lives – to that point – many hopeless romantics decide (or are required by their parents) to get a prenuptial agreement which set forth many of their rights and responsibilities in the event of death or divorce. Typically, a prenuptial agreement has
Is prenuptial agreement reform coming to New Jersey? It appears to be the case.
Prenuptial Agreements are meant to fix parties rights and responsibilities in advance, so as to avoid litigation and aggravation in the future. In fact, right up front in many if not most prenuptial agreements there is a "Statement of Intention" as follows:
It is the intention of the parties in entering into this Agreement that in the event of the termination of the marriage by divorce or death, certain rights shall be fixed in advance. It is their intention to avoid litigation and intrusion into their professional and personal lives and the lives of their families and business associates, which would perhaps otherwise occur if this Agreement had not been entered into.
Unfortunately, unlike in many other states, where prenuptial agreements are ironclad as long as there was full disclosure and the other procedural requirements are met, that has not been the case in New Jersey. The major reason for this is that in New Jersey, aside from setting aside a prenup due to failure to follow the procedural requirements, including full disclosure, agreements can be set aside if they are deemed to be unconscionable, not only when they are entered into, but when they are to be enforced at the time of the divorce. As a result, I have heard judges say that they have never enforced a prenuptial agreement. I have heard other judges give the rationale that because you don’t know what is going to happen in the future, it is unfair to enforce the agreement against a spouse where she/he waives alimony or the equitable distribution rights. That rationale misses the point as that is the entire reason for a prenuptial agreement.
The New Jersey Appellate Division has held that an application seeking to set aside a Property Settlement Agreement (PSA) under Rule 4:50-1 of the New Jersey Rules of Court should be granted "sparingly." It was this very type of application that formed the basis of the Appellate Division’s recent opinion in Heald v. Heald, found here.
The parties were married for 28 years and had 4 children before the Final Judgment of Divorce was entered in November 2006. They had separated in 2005 and, for a significant period of time, negotiated the terms ultimately encompassed in a PSA, executed in April 2006. Notably, the parties agreed to use the Husband’s 2004 income to determine his support obligations. The PSA also contained language that the parties were knowingly waiving their right to discovery regarding each other’s income and assets.