As a divorce lawyer who reviews and creates prenuptial agreements in Jersey City for people throughout the State, I found that certain elements should be clear in a prenuptial or post-nuptial agreement in order for it to be effective. While every case or situation is fact sensitive, below are some key tips to focus on.
I. Avoid any potential duress arguments in the future
When something is challenged in court, the Judge wants to know the background as to how you got there. If your spouse signs a prenuptial agreement and when a divorce is pending, he or she may claim duress as a reason why the prenuptial agreement is invalid. Language in the prenup could help kill that argument but that at times this may not be enough. The sooner a person introduces the idea of a prenup during the relationship/engagement and finally the execution of the agreement far in advance of the wedding date, the better. As you can imagine, having to sign such an important document just days or weeks before a wedding where your whole family will be there and friends, could put undue pressure on yourself or your spouse to sign a document he or she was not ready to sign or was rushed to sign. Avoid this and plan in advance.
II. Be as precise as possible concerning the value of current assets
The more candid you are, the more likely your prenuptial agreement will withstand a challenge in the future. This candidness should be about assets, debts, other children, etc. It is very important to be forthcoming about your assets so that you can protect those assets in the future if you to have to go to the “divorce ring.”
III. Be Fair
Yes I said it, Be Fair. Making an agreement that is totally one-sided is not wise for future challenges, nor is it just to your future spouse if you do intend to become a partnership indeed.
For example, if you earn $200,000 and your spouse earns $40,000, having your spouse waive alimony forever may not be wise at all. The income differential is very wide and there is no way to determine the length of the marriage at the time of the prenuptial agreement, whether you will have children, etc. In the grand scheme of things, It would be better to set parameters rather than have someone forfeit a right entirely (not that alimony is a right per se but it can easily be obtained in certain cases). One parameter maybe that no alimony will be paid if the marriage lasts less than 5 years. Another aspect of a prenuptial agreement to avoid is setting or trying to set custody now before you even have children. A person cannot predict with certainty how a person will be once they become a parent and therefore how custody should be in the future.
IV. Have Two attorneys work on it and/or review the terms (one for each spouse)
While a wedding is very costly, signing an agreement that you do not fully understand or understand the ramifications of same will potentially cost you much more than any wedding. Take the time and money to pay an attorney to make the agreement and another to review and negotiate it on your behalf. An attorney can see the big picture because he or she is not in the middle of it, you are.
V. The more details, the less you leave to chance
Again, working with an experienced divorce lawyer is very important. He or she will be able to add critical details to the agreement to make sure you are protected. Choosing a cheap online version or an attorney that does not know about matrimonial law is a terrible idea. The more details you add the less likely you will have disagreements as to the meaning of the agreement or sections of it. Be detailed.
Again, each situation is fact sensitive and each agreement must be tailored to your needs. If you seek a prenuptial agreement or seek an attorney to review one that has been presented to you, contact the Artusa Law Firm team at (973) 337-9643 today.