Love and the Law: Protecting Your Rights Before Marriage

With Valentine’s Day coming up and the holidays just passed, we are in “engagement season.” These months are typically known for having a higher number of reported engagements than the rest of the year. We are also heading into “wedding season.” With spring around the corner and summer following right after, the warm weather brings wedding celebrations. So, you may be asking yourself—what does that have to do with family law?

Simple: while love is in the air, so should planning be. Part of that planning may need to include a prenuptial agreement for the couple. Some of you may think this is distasteful. Ask anyone who has been through a difficult divorce—I would guess a high percentage of them would tell you they wish they had one. Couples are getting married later in life and have already established themselves in some way. Let’s not forget that the divorce rate for first marriages still hovers slightly over 50%. For second or third marriages, the rate is even higher. Last but not least, coupling has evolved. What was once determined by locale and family status is now universal through dating apps and the mobility of many jobs.

A prenuptial agreement is a contract between two parties, entered into before marriage, that sets forth each person’s rights and obligations should the marriage end in divorce. This type of agreement, if done correctly, can cover (or not) the preservation or protection of assets and/or income, the payment of lifestyle expenses and taxes, the division of assets and liabilities, how inheritance and gifts will be treated upon divorce, spousal support, and estate planning. It saves time, expense (both financial and emotional), and the stress of what could potentially be a long, tenuous process. It allows for the creation of terms that both parties can participate in and removes the risk of a judge making decisions regarding your life. For families, it ensures that family wealth can be protected in the event of divorce. You can be as generous—or not—in creating these terms. You can provide for things that a court would not or cannot consider.

A few things to note, however. First, you cannot include custody arrangements for known or future children, nor can you include financial support for them. Custodial arrangements are determined by what is in the “best interests” of the children, and there is no way to predict that for a potential future event such as divorce. Child support is a legal right that belongs to children. Therefore, parents cannot contract away or diminish that right. Additionally, as a legal right belonging to children, they are entitled to receive the benefit of their parents’ financial ability to provide for them at the time a divorce occurs. This cannot be predicted in advance of marriage.

In addition to these two principles, it’s important to know that in New Jersey, prenuptial agreements are governed by statutory law, specifically N.J.S.A. 37:2-31-41 (2024), referred to as the Uniform Premarital and Pre-Civil Union Agreement Act. This law requires that for this contract to be enforced, it must have been executed voluntarily and must not have been unconscionable at the time of its execution. The former means that, before execution, full financial disclosure was made of the earnings, property, and financial obligations of the parties; or that a party did not voluntarily and expressly waive the right to full disclosure beyond what was provided; or that the party did not have, or reasonably could not have had, adequate knowledge of the other party’s property or financial obligations; or that the party did not consult with independent legal counsel and did not voluntarily and expressly waive the right to do so.

Prenuptial agreements are an excellent tool for removing uncertainty from a potential divorce. New Jersey courts look favorably on dispute resolution outside the courtroom, and it is well-established law that contracts, so long as they meet statutory standards, are favored for enforcement. These agreements have become far more common than ever before, and any stigma associated with them is dissipating.