Organizations that track this sort of thing report that couples are marrying later in life more than ever. While the reasons vary, one of the key by-products of later marriages is that an engaged couple is more likely to have accumulated assets that should be protected in the event they divorce. Since half of all marriages end up that way, having a prenuptial agreement not only protects each person but, for divorcing fathers who may want custody of their children, it can help protect the kids, as well.
But whether it’s your first marriage or you’ve walked down the aisle before, signing a pre-nup is important. This is especially true if you have children from a previous marriage along with any kids that might be the product of the new marriage.
Sadly, many engaged couples find thinking of divorce unthinkable.
Protecting Premarital Property with a Pre-Nup
In New Jersey, premarital property is protected from being included in “equitable distribution” in the event of a divorce. But if anything you acquired or inherited prior to a marriage gets lumped in with assets acquired while you were a married couple, it isn’t a simple matter to determine whether the asset will be subject to the distribution section of family law.
For example, I have worked with men getting a divorce who bought a condo or house when they became engaged but before they said “I do!” Even though the property and mortgage were in the husband’s name alone, the court looked at the behavior of the man and the woman regarding the property and debt: Did they look for the home together? To what extent did they each work on decorating and maintaining the dwelling? Did they live together in the house before the marriage?
If the answers are “yes, we did,” in a situation like this a judge is likely to decide that the home was acquired in contemplation of the marriage. Absent a pre-nup agreement, it may well be subject to “equitable distribution” as part of the property settlement.
The same issue might arise in the event one partner in the marriage received an inheritance before the wedding. If the assets – whether cash, securities, valuable collectables or real estate – is kept separate from things such as a retirement account or artwork acquired during the marriage, it may be exempt from distribution.
To protect assets and to ensure there is no dispute, a pre-nup will detail who owned what, when, and why it was acquired.
Enforceable Contracts for Fathers
For a pre-nup to be viewed by a court as an enforceable contract, there must be a statement of assets owned by each party attached to a written agreement that the couple signs. The law governing pre-nups requires a “full and fair disclosure” which means both the man and the woman must attest they have listed all of their assets.
It is very difficult to overturn a pre-nup in the event of a divorce. The standard of proof requires “clear and convincing evidence” and the party trying to break have the agreement declared unenforceable must prove that it is unenforceable. Absent a deliberate act of omission or suspected fraud, judges look askance at attempts to break the agreement that was negotiated and signed when love was in full bloom.
For a father who is considering or is going through a divorce in New Jersey, a pre-nup is one tool to help protect the financial well-being of your children from either your current marriage or a previous coupling.
It’s not that a prenuptial agreement is “all or nothing.” Rather, discussing your financial position with your soon-to-be spouse allows you to raise issues when you most care about each other. And, most importantly, an agreement allows fathers to detail how they will take care of their children in the event of a divorce.
If you are a man considering marriage, it may seem odd to meet with a family law attorney when you’ve just given your loved one a ring. But nothing in life is guaranteed and if you stay happily married ever after the pre-nup will simply sit in a filing cabinet gathering dust.
If you have questions about drafting and signing a prenuptial agreement, feel free to call me or one of our New Jersey family law attorneys. Reach me in Nutley at 973.562.0100 or Montclair at 862.245.4620.