What is a Prenup?
A prenuptial agreement is a contract written before your wedding setting out what would happen if you and your partner divorce. The terms of the agreement may be different from what the court would rule if there were no agreement, but it generally needs to be fair to be enforceable. The prenuptial agreement may cover property division, financial support, and other arrangements in the event of either divorce or death. Because state and individual courts have a lot of scope to adjudicate matters of divorce , prenuptial agreements are not always binding.
It’s quite common for people to consider using a prenuptial agreement as a safety precaution before marriage. You might choose to protect assets, income or even children from a previous relationship. Or you may choose to share debts in case of divorce. Many states hold prenuptial agreements to be valid if the parties can show that they understood the agreement and have signed it without undue influence or fraud. Courts typically have discretion if the agreement is fair and does not put undue hardship on either party.
Do Prenups Expire?
Usually they do not. Like any contract, a prenuptial agreement may have an expiration date. In fact, it is a good practice for the parties to a prenuptial agreement to set a specific termination date for the agreement. Often the dates are something like 10 years from the date of the marriage or the 5th anniversary of the marriage. A couple might choose to allow for a period of adjustment so that they can decide if the prenuptial agreement continues to be as fair and as necessary as they believe it currently is, before it becomes null and void.
Prenuptial agreements do not expire with the termination of the marital relationship. If they did, each party would be free to amend them at any time. Even after the date of the expiration, unless the agreement provides otherwise, a court will enforce the terms of the agreement even after a divorce or separation. A prior action regarding the validity of a prenuptial agreement does not bar a subsequent challenge to that agreement on grounds other than those previously decided.
In practice, however, a court will not likely enforce a prenuptial agreement in a circumstance such as where the facts do not support the nullification of the marital relationship. For example, a court might determine that a nullification of the martial relationship was not intended where the parties had children as result of their marriage. In other words, a prenuptial agreement may be unenforceable to the extent that it is unconsented to by the children of the marriage.
However, a prenuptial agreement, generally, survives a divorce or death. It only terminates if the parties so agree.
What Could Void a Prenup?
While there are many terms of a prenuptial agreement that are generally valid in any situation, there are circumstances that could render them invalid. For instance, under the New Jersey Statute 2A:34-25 – an individual may not participate in an action to enforce the terms of a prenup if determination by that court shows that the agreement was entered into under fraud, duress or coercion or if the agreement was the result of any kind of misrepresentation.
In addition to fraud, coercion and misrepresentation, an agreement derived from unconscionable terms may also be considered invalid. This means that if there is something completely unfair in the terms of the agreement, it may not hold up in court.
Ascertainable rights of dependents may also present problems for a prenup agreement. If the terms of the agreement diminish or eliminate the rights of a child, another party or even a future spouse, they may be deemed invalid.
The circumstances under which any agreement is signed can also affect its validity. If the agreement is signed under a period of duress shortly before the wedding when certain terms are not fully discussed, it may not hold up if the agreement is presented in court.
When to Renew or Update a Prenup
When a couple wishes to renew or amend their prenuptial agreement there are no statutory requirements, but the terms of the agreement must be updated to reflect contemporary terms. When married life does not play out as envisioned, an amended agreement can be used to capture the parties newly created circumstances, expectations or diminished concerns. Such updates may include: changes to the terms of alimony, modification of agreed upon fiscal duties, or adjustments in the event of death and/or retirement.
In addition to these modifications, a prenuptial agreement may be amended, renewed, or voided under certain conditions as established by the law. Section 236(8 of the Domestic Relations (DR) Law enables a prenuptial agreement to be amended or renewed at any time before the couple divorces as long as the agreement is in writing and acknowledged.
Amendments, like the original agreement, must be in writing and witnessed as follows: (1) by one person; (2) who is not a party to the agreement; and (3) by two witnesses, one of whom must be a notary public or commissioner of deeds.
In certain circumstances , a prenuptial agreement may become void if the couple lives as a married couple after entering into the agreement and the terms of the agreement provide that living together as a married couple constitutes a term or condition of the agreement. No particular period of time is necessary for the agreement to be voided on these grounds.
A prenuptial agreement may also become void or terminated if the couple lives together as a married couple for longer than 10 years and the agreement does not expressly provide that indefinite cohabitation will not terminate the agreement. In that case, the prenuptial agreement will not be void if it continues to be in effect for a period of 6 months after the other person begins living apart from the spouse or civil union partner that is party to the agreement.
Although this provision does not guarantee renewal if the couple lives together for a minimum period of time, many couples update the terms of their prenuptial agreements periodically during their marriage in order to decrease the likelihood that an expired agreement will be deemed void. Given the life-altering nature of the decision to marry, couples may prefer to renew their premarital agreement on an incremental basis thus diminishing the restrictions that may otherwise apply pursuant to the statute.
How State Law Affects a Prenup
State Laws and their Effects on EPF’s, and Prenuptial Agreements
Every state has its own prenuptial agreement legislation. For example, just a few of the differences include questions of: Which law governs the contract? What formalities are required? What issues cannot be waived? This lack of uniformity is important as individual states may have laws that directly affect the enforceability of particular marital agreements or make certain provisions or combinations of provisions unenforceable, no matter how fair they may seem. As such it is essential that any prospective marital agreement be drafted only after a thorough review of all applicable statutory and case law in the state in which the parties reside. For example, in Johnston v. Johnston, (NC, 2001), a North Carolina trial court denied enforcement of a prenuptial agreement signed by the husband on the ground that the agreement was unconscionable because it gave the wife a choice of alimony based only on his waiver of marriage. In holding that the trial court did not abuse its discretion in finding the agreement unconscionable, the Court of Appeals pointed to the wife’s inability to obtain independent legal counsel before being forced to sign the agreement, the fact that the husband alone would benefit from the agreement, the disparity between the size of the parties’ assets at the time of marriage and those upon divorce, and the fact that the wife was inexperienced and did not work outside the home during the marriage. Conversely, in Colorado, the court in the decision of In re Marriage of Brown that an ex-wife was required to comply with the waiver of spousal maintenance and division of property that she and her ex-husband had agreed to in their prenuptial agreement even though a statute later enacted in Colorado did not allow individuals to waive spousal maintenance.
Asking an Attorney About a Prenup
Consulting Legal Experts on the Expiry of Prenuptial Agreements
The creation, renewal, or questioning of the existence or validity of a prenuptial agreement are issues that should, and must, be addressed by legal professionals. After all, beyond the fundamental and obvious purpose of any matrimony spanning an entire lifetime, there is vast ground to cover when it comes to the specifics of relationships. And even among people who enter into a marriage with all of the best intentions, situations may arise that shift one’s perspectives on the future. When this occurs, sudenly a lengthy, enforceable, and fair agreement may become untenable for one or both parties. Those considerations aside, it is critical to understand the particulars of the terms listed in one’s specific prenuptial agreement.
If you possess a prenuptial agreement , and think that you may have a sound legal basis to contest its terms, then you must consult with legal professionals who have licensing, certifications, and experience in matters pertaining to prenuptial agreements, marriage, divorce, and their respective tolls on the transfer of wealth and property between spouses. The resolution of your situation could have a significantly positive, or negative, impact on your future. The legal team you enlist must be experienced in all of the intricacies and stipulations of prenuptial agreements, and be at the ready to interpret your agreement, research case law, and help you build his/her case with clear-minded answers to specific questions, and a reasoned analysis of those answers.
"Lieberman & Greenberg P.C." has such qualified lawyers on staff, and we may be able to assist you.