It’s February, Punxsutawney Phil saw his shadow last week, we have 6 more weeks of winter, but love is in the air! Hallmark is cashing in on the Love Train selling billions of dollars worth of feel good, “I will love you forever” promises on plain, frilly, large, small, square, oblong bejeweled cardstock in every imaginable color as fast as they can fill the shelves. Chocolate roses are everywhere, even gas stations. Why? Valentine’s Day is just days away and Cupid’s arrows are flying at warp speed. Who doesn’t love the warm and fuzzies that falling in love or being in love on Valentine’s Day inspires?
Being in love is great, there is no better feeling than meeting your soul mate, your other half, your reason to be. The world through rose colored glasses is so much nicer! But don’t be fooled. Love doesn’t always last. For every amazing Valentine’s Day we have each experienced, we have probably also experienced a pretty lousy one as well. Mr./Ms. Perfect didn’t turn out to be so great after all. So what do you do?
Be pragmatic. Hope for the best, but prepare for the worst. Prenuptial Agreements are designed specifically for cases of “I love you… until I don’t or you don’t anymore.” People cringe when they hear the words “Prenuptial Agreement.” The immediate thought is “how unromantic”, “a marriage is not a business” or “you’re planning for our future to fail?” Arguably, however, Prenuptial Agreements are romantic and the biggest sign of commitment there is (besides the wedding).
That’s because Prenuptial Agreements take the guesswork out of your relationship, financially speaking, so you can focus on the romanticism that being a newlywed evokes. One of the biggest issues in a marriage and a leading cause for divorce is arguments about money. By removing that issue from the relationship via a Prenuptial Agreement, both partners knows exactly where they stand at all times. They know what they each have. They know what they will keep. They know what will be divided. They know how they will address a potential future breakup if it were to occur. It removes the confusion and the disputes that can lead to miscommunication, resentment and the beginning of the end and lets the couple focus on the joint enterprise as opposed to what came before the destined meeting or what may come after. It removes the uncertainty and allows both partners to build a life together with full disclosure and clarity.
Just as each spouse takes their vows to have and to hold for richer, for poorer, a Prenuptial Agreement is a commitment, too. It is a commitment to create a joint enterprise together and how to treat one another should things not work out. It is a promise to deal fairly with one another in the event of a divorce. It is a promise to uphold your respective ends of the deal, whatever the deal may be. Rather than viewing prenuptial agreements as a bad thing, try looking at them as a commitment to the other party of such significant value that you are each willing to address the potential downside now to set it aside and get on with the future you expect to have.
To that end, in New Jersey, Prenuptial Agreements are governed by the Uniform Premarital and Pre-Civil Union Agreement Act, N.J.S.A. 37:2-31, et seq. (hereinafter the “Act”). The Act requires that the following formalities be observed in the creation of a premarital agreement: the agreement must be “in writing, with a statement of assets annexed thereto, signed by both parties, and it is enforceable without consideration.” Id. at 37:2-33.
In order for an agreement to be enforceable under the Act, the agreement must have been executed voluntarily and must not have been unconscionable when it was executed. Id. at 37:2-38. An agreement will be found “unconscionable” if, prior to the execution, a party 1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; 2) did not voluntarily and expressly waive, in writing, any right to disclosure beyond the disclosure provided; 3) did not have an adequate knowledge of the property or financial obligations of the other party; or 4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. Ibid. The statute allocates the burden of proof to set aside a premarital agreement upon the party alleging the agreement to be unenforceable and subjects the Prenuptial Agreement to presumptive enforceability. Ibid.
If you are in love, Congratulations! Enjoy Valentine’s Day and if you are contemplating getting married, give your loved one the gift of certainty- a Prenuptial Agreement!