Perhaps you’re about to get married and considering having a prenup prepared. Or you might already have a prenup that you want to enforce in your impending divorce.
People getting married have a variety of reasons for wanting a prenuptial agreement (also called a premarital agreement or prenup, for short). For instance:
- To protect the inheritance rights of children and grandchildren from a previous marriage;
- To protect a business or professional practice so it is not divided and subject to the control or involvement of the former spouse upon divorce;
- To protect a debt-free spouse from having to assume the obligations of the other; or
- To limit the amount of alimony that one spouse will have to pay the other upon divorce.
Perhaps you have a prenup and want to enforce it in your impending divorce. You should anticipate that the attorney representing your soon to be ex-spouse will oppose the prenup. Here’s where things can get tricky.
It’s not uncommon for the opposing spouse’s attorney to claim the prenup is unconscionable when it was executed, or the spouse signed it under duress.
At this point, only the court can determine if the prenup is valid and enforceable after a full-blown trial or plenary hearing.
It’s important to know, however, that only about 1% of all New Jersey divorces actually go to trial. The overwhelming majority are resolved by out of court settlement.
This is largely due to the exorbitant legal fees and length of time involved trying your divorce case in New Jersey for an unpredictable result. My earlier post describes the New Jersey divorce trial process.
By the same token, the New Jersey divorce court procedure is geared to promote settlements and avoid trials. View my recent post for the details.
Under these circumstances, both spouses often decide to avoid a trial. Unfortunately, what this often means is you don’t get the benefit of the prenup.
Therefore, instead of automatically assuming a prenup is your best bet, first determine what you want to achieve. For example, is this a second marriage and you want to preserve your assets for your children from a prior marriage or relationship? You might consider an estate planning device, such as a trust. A competent estate planning attorney can advise you on your options.
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