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APRIL/MAY 2016
THE WARREN-WATCHUNG CONNECTION
PAGE 65
Planning your wedding can be a lot of fun. There is much to do for the big day – the perfect dress, the matching tuxedo, the ceremony, the reception, the honey- moon and the million other details in between. Let me suggest adding anoth- er item to that seemingly never-ending “to do” list – consider entering into a Prenuptial Agreement. Years ago, this subject was taboo. How- ever, with the divorce rate at 50%, and second or subsequent marriages failing at an even higher percentage, reality has set in even for those feeling the wonderful, magical butterflies of love. Despite the feeling of bliss, you may realize that you need a Prenuptial Agreement to address the allocation of assets or support in the event of a divorce or upon death. Many couples today want an agreement that will address and resolve their issues in the event of death or divorce and they want the agreement to be signed prior to their marriage. The way to go about defining these rights and obligations in the event of a divorce or upon death is through a Prenuptial Agreement. The requirements of a Prenuptial Agree- ment are governed by statute, which addresses three main areas that the Agreement must consider. First, the Prenuptial Agreement must contain full and fair disclosure of all the earnings, property, and financial obligations of the parties. A complete and comprehensive schedule of assets and liabilities of both parties must be attached to the agree- ment. Tax returns and other proof of income or earnings should also be attached to the agreement. Unknown values should be determined and includ- ed in the schedules and the agreement. If you choose not to value certain assets, the agreement must include specific and detailed written waiver language. Second, both parties must be represented by attorneys, or there must be a specific written waiver of the right to hire an attor- ney. I personally choose to not handle a Prenuptial Agreement when the other party does not have an attorney. This situ- ation spells disaster and is something to avoid because the person who does not have an attorney may later claim that he or she was forced to sign the agreement or did not understand its terms. Each party needs their own attorney. One attor- ney cannot represent them both. Third, the agreement must not be unconscionable. Is the agreement just so unfair and so inequitable that it can- not be enforced? Would it leave a party without reasonable means of support? If so, chances are the agreement is unconscionable and would not be enforceable by a court. In that case, the agreement is meaningless, and the terms contained in the agreement are not binding on either party. In addition, a Prenuptial Agreement can- not adversely affect a child’s right to sup- port. Accordingly, any waiver of child sup- port or the like will not be enforced by a court. Therefore, Prenuptial Agreements should specifically state that there are no provisions regarding child support. Prenuptial Agreements can also address the parties’ rights upon death. The agreement can memorialize intentions as to the disposition of assets should death occur. If a legal issue later arises regarding the enforceability of a Prenuptial Agreement, the burden of proof under the statute is on the party alleging that the agreement is unenforceable. The standard is clear and convincing evidence. This is a higher standard than preponderance of the evi- dence, but a lower standard than beyond a reasonable doubt. Since significant and crucial decisions are being made and established in the agree- ment, it is critical that you have your own attorney to walk you through the Prenuptial Agreement process before you walk down the aisle. While a Prenup- tial Agreement may not add to the feel- ings of marital bliss, it could prove to be an invaluable asset in the future. PRENUPTIAL AGREEMENTS By: Jeralyn L. Lawrence, Esq. Norris McLaughlin & Marcus, P.A. www.theconnectionsnj.com