When I first began practicing family law, a prenuptial agreement – or “prenup” – generally was something that men with very high incomes or who came from wealthy families wanted their bride-to-be to sign so she couldn’t lay her hands on his assets in the event of a divorce.
This has changed dramatically over the years. Today, they are much more common and not simply negotiated and signed by people of great wealth.
Because couples are marrying later in life, both people in a pending marriage are more likely to have acquired assets and have jobs or a business that generates serious income. A prenup agreement is a contract that says, in effect, “I love you and what we acquire together is ours but what was mine before we exchanged vows remains mine.”
Keeping Marriages Alive
More and more often, an engaged couple comes to see me about creating a prenuptial agreement for them. They recognize that a well-crafted prenup will eliminate many of the tensions that lead to a breakdown in the marriage. Indeed, the agreement can make the marriage stronger and thus more likely to beat the odds and succeed long-term.
In general, the prenuptial agreement can distinguish precisely what is marital property and what belonged to each person prior to the wedding. It can provide for protection against the debts of the other spouse that was acquired before or, under some circumstance, even during the marriage. The prenup can provide for a child from a previous marriage as well as protecting family property so it remains in the family. An existing estate plan can be included as a protected asset.
As important, is that the agreement can enumerate directions for dividing property during a dissolution and even describe what each spouse will be responsible for during and after a divorce.
What a Prenup Cannot Do
That said, there are things we cannot write into a prenuptial agreement.
For example, a couple cannot change what New Jersey law says regarding child support, custody and visitation. Regardless of what the either half of the couple wants or is willing to write in the agreement, New Jersey child support guidelines and visitation rules will overrule the agreement in the event of a divorce. So, for example, no matter how wealthy she might be a mother cannot waive paying or receiving child support for any of the offspring resulting from the marriage. Nor can a father, for that matter.
Courts are very deliberate in retaining their ability to decide what is in the best interests of the children regardless of what the couple may have signed years earlier.
Likewise, we cannot draft an agreement that tries to enforce something that is illegal. The result would be that a judge may well invalidate the entire prenup. Nor can the document be used to enforce something where the law does not come into play. So, trying to use it to enforce personal matters such as committing one or the other person to do all of the housework or having sex a certain number of times each week simply won’t fly.
Simplifying A Complex Process
The process of negotiating, drafting, enforcing or blocking a prenup is a daunting task for even couples who are deeply in love. We will carefully explain what each person’s rights and options are, and how the agreement can protect those rights.
If you are a man who is getting married and wants to discuss the benefits and advantages of a prenuptial agreement, please call me or any of our family law attorneys for men and fathers in New Jersey. Reach out to us at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.