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Settlement Agreement on College Contributions

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Catabran v. Catabran, was decided on June 16, 2016.  The appellate court affirmed the Morris County Family Part opinion that the parties settlement agreement to share the children’s college costs equally is enforceable.  The case evolved from an issue arising post divorce (known as post-judgment dissolution matter).  The parties settlement agreement stated clearly that the “net college cost will be split equally by both parties.”  The appellate court held that absent changed circumstances, where parents’ matrimonial settlement agreement clearly provides that they will share their children’s college costs equally, a court need not apply the factors set forth in Newburgh v Arrigo, 88 N.J. 529, 545 (1982), to determine whether a parent should contribute to a child’s college costs and the extent of the contribution.

The Catabran case is an example of why college expenses addressed in the Matrimonial Settlement Agreement should not be overlooked.  College Contributions addressed in Matrimonial Settlement Agreements should not obligate a parent without addressing the factors in Newburgh v. Arrigo.  The Agreement should address college contributions “in proportion to the parents ability to contribute.”  These simple words in Matrimonial Settlement Agreements have an extreme impact on the parties financial future. Usually, when the child reaches junior year of high school, the parties exchange CIS to determine their ability to contribute towards college expenses.  If the parties are unable to reach an agreement, the trial court will set up a plenary hearing.  In family matters, a plenary hearing is ordered when there is material fact in dispute such as the parties ability to contribute towards college expenses.  A plenary hearing gives both parties the ability to present evidence, witnesses, cross-examine and argue their position.

When drafting settlement agreements attorneys must be mind full of not obligating their client in the future.  A settlement agreement should have the parties share of college contribution only if the child is in college already or will be within the next two years.

Recent Case Law on Unpaid Child Support in New Jersey

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Decided on January 13, 2016, both parties being represented by counsel, in Matison v. Lisnyansky, the court imposed the legal doctrine of fugitive disentitlement to dismiss defendant’s appeal while a bench warrant for unpaid child support. The legal doctrine of fugitive disentitlement is the balancing of justice, that is, a fugitive from justice may not seek relief from the judicial system whose authority he or she evades.

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The parties in Matison v. Lisnyansky had two children born in 2004.  The plaintiff came to the United States in March 2006 and lived with the children and defendant in Franklin Lakes home purchased by defendant.  Defendant returned to Europe to conduct business, sold the Franklin Lakes home, but continued to provide significant support while plaintiff and their children resided in Tenafly.  In 2012, after defendant stopped supporting his children, plaintiff obtained a court order for child support.  The order stated: “The Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

After many adjournments and four day hearing on plaintiff’s claims for palimony and child custody, on May 1, 2013, the trial court entered a default judgment.  One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment through counsel as he could not appear due to the still outstanding bench warrant, which was denied. Defendant then appealed this Order.

The Appellate Division dismissed based on the legal doctrine of fugitive disentitlement and stated that “a father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”  The Appellate Division noted that defendant had been avoiding his court-ordered responsibility to support his two children, while seeking to appeal the issues of palimony and custody resulting from the same litigation.  The Appellate Division noted that the doctrine may be inconsistent with a proper analysis of the best interest of the child. However, under these facts the defendant had supervised parenting time, defendant failed to offer an alternative custodial plan, nor did he complain about custody throughout the litigation.  And, he waited until the absolute last possible date to file a motion to vacate default judgment.

Alimony Waiver for Failure to Enforce

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Payee may cause alimony waiver for failure to request enforcement.

Alimony Waiver or Alimony Forfeiture

Alimony Waiver if Failure to Enforce

A recent case decided on January 11, 2016, Lazar v. Lazar, dealt with the issue of possible alimony waiver for failure to enforce the provisions of the parties martial settlement agreement.  On appeal from Bergen County, both parties represented by counsel, the plaintiff appealed an order denying his motion to enforce the provisions of the final judgment of divorce, requiring defendant to pay past due alimony totaling $126,000. Plaintiff moved to Israel in 2010 before finalization of the final judgment of divorce, and defendant never paid the ordered alimony sum, stating that plaintiff failed to provide a mailing address. In his pleadings filed in 2014, plaintiff explained that his enforcement request was delayed, as he was homeless and suffered physical and mental problems, which interfered with his ability to address the matter. The trial judge denied relief and concluded that plaintiff’s failure to provide an address to facilitate payment was a condition precedent to his receipt of alimony. Therefore, his “material violation” resulted in an alimony waiver of all past due payments.

The appellate panel rejected the judge’s factual findings drawn without benefit of a plenary hearing as well as his erroneous legal conclusions invoking the doctrine of waiver. Defendant’s argument that once contacted by plaintiff’s counsel to resume alimony in August 2013, defendant had no obligation to resume payment because plaintiff had failed to provide an address, had possibly cohabited or remarried, and defendant had been temporary unemployed was rejected as meritless. The panel also rejected the judge’s conclusion that forfeiture of the alimony award was mandated because of prejudice resulting to defendant. Nor did equitable estoppel or laches demand forfeiture of the alimony award. “Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] so that it would be inequitable to enforce the right.” L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). “The core equitable concern in applying laches is whether a party has been harmed by the delay.” Knorr v. Smeal, 178 N.J. 169, 181 (2003) (emphasis added). The appellate court stated that no facts supported a finding that defendant was misled by the delay, to her detriment.

The appellate panel stated alimony is not intended to be a punishment or a reward, Mani v. Mani, 183 N.J. 70, 80 (2005), but exists only “to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.”  Crews v. Crews, 164 N.J. 11, 16 (2000). The panel reversed the order and remanded the matter for a plenary hearing stating that a decision on plaintiff’s motion is solely based on the factual finding of whether defendant knew where to send alimony payments, the Family Part judge’s decision must be reversed because such a determination can only be made following a plenary hearing.

The question still remains how long before a forfeiture or an alimony waiver occurs if a spouse waits to enforce alimony?

Parents’ College Contribution in NJ

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Parents’ college contribution in NJ

Recently on December 30, 2015, the Appellate Court in Laurel v. Dixon reversed and remanded to Union County trial court for a plenary hearing to undertake the separate and discreet analysis of defendant’s financial capability to make college contribution and, if so, in what amount.  The Plaintiff, represented by counsel and defendant unrepresented appealed a June 24, 2014 order that denied her motion to compel defendant to: make a $5000 lump sum payment toward child support arrears; contribute toward their son’s college tuition; reimburse her $12,144.06 for one-half of their son’s tuition she previously paid; and pay her counsel fees. She also sought a lien on defendant’s retirement account to secure his support obligations.  The Appellate court specifically stated that the trial court failed to articulate any of the Newburgh factors.

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Parents’ College Contribution in NJ

The outcome of the case reminds the family division trial judges that to make a determination of a parent’s ability to contribute towards college expenses a detailed analysis of the Newburgh factors is required.  The Newburgh factors include:

  • Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
  • The effect of the background values and goals of the parent on the reasonableness of the expectation of the child for higher education;
  • The amount of the contribution sought by the child for the cost of higher education;
  • The ability of the parent to pay that cost;
  • The relationship of the requested contribution to the kind of school or course of study sought by the child;
  • The financial resources of both parents;
  • The commitment to and aptitude of the child for the requested education;
  • The financial resources of the child, including assets owned individually or held in custodianship or trust;
  • The ability of the child to earn income during the school year or on vacation;
  • The availability of financial aid in the form of college grants and loans;
  • The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  • The relationship of the education requested to any prior training and to the overall long-range goals of the child.

Parents’ college contribution in NJ is dependent on the individual facts of each case and requires detailed analysis.

How Divorce Affects Children

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Think of the Children!

The Affects of Divorce on Children

divorce-njWhen considering a divorce, the first thing that might pop into your mind is divorce affects children. Keeping children happy and healthy is a parental instinct. Often times parents’ view divorce as something that will have a severely negative affect on this happiness and emotional health. Many of us know or have heard countless stories of couples who “stayed together for the kids,” or delayed divorce until they reached adulthood. While this may work for some couples, it is not healthy for most to stay in an unhappy marriage for the sole purpose of keeping the children’s status quo.

Numerous studies have been conducted on how divorce affects children, but the fact remains that every family and every divorce is different.

According to Scientific American, a relatively small percentage of children experience serious problems in the wake of divorce or later in life as adults. Most children are affected in the short-term, but research suggests that they recover rapidly after the initial impact.

A 2002 study conducted by University of Virginia psychologist E. Mavis Hetherington and her graduate student Anne Mitchell Elmore found that many children experience negative affects in the short-term, including anxiety, anger, shock, and disbelief; however, by the end of the second year these feelings usually lessen or disappear.

In 2001, sociologist Paul R. Amato examined the affects on children several years after divorce. Children who experienced divorce at different ages were followed into their later childhood, adolescence or teenage years. The study found that on average there were only very small differences between these children and children of non-divorced parents in their academic achievement, emotional and behavior problems, delinquency, self-concept and social relationships.

how-divorce-affects-childrenResearch has showed that high levels of parental conflict during and after divorce are linked to more difficult adjustment in children; however, in some cases children who are from high conflict families welcome divorce as a relief from parental fighting, while those who have not witnessed any marital conflict can be more shocked or scared by the news.

While there are claims that suggest divorce leads to serious issues in adulthood like depression and relationship problems, such as in the the 2000 book entitled The Unexpected Legacy of Divorce: A 25 Year Landmark Study, by Judith Wallerstein and her colleagues, scientific research does not support the notion that such problems are frequent in adulthood.

On the contrary, many studies have found that most children of divorce become well-adjusted adults; the 2002 book, For Better or For Worse: Divorce Reconsidered, by E. Mavis Hetherington and her co-author, journalist John Kelly, details a the 25-year study in which she followed children of divorce and children whose parents stayed together. Hetherington found that 25 percent of the adults whose parents divorced experienced serious social, emotional or psychological troubles compared to 10 percent of those whose parents stayed together, which suggests that only 15 percent of adult children of divorce experience problems worse than those from intact families.

Ultimately, research cannot determine what causes or affects this difference, but factors such as poor parenting and the characteristics of the children are likely to play a role.

A large part of how divorce affects children is due to how parent’s handle the divorce themselves. The emotional toll of divorce on couples and the stress it produces can lead to an unintentional drop in the quality of parenting during the process. Trying to keep the stable environment the children are used to is key to their success. Some changes are inevitable, but the amount of emotional support, love, and care given is in the hands of parents.

If one or more parents are not doing well emotionally, it is likely that the children will suffer as well; therefore, a parent should try to recognize their own personal issues and seek professional help. This is especially important for the parent of primary residence.

divorce-affects-childrenChildren who witness constant fighting between their parents have a harder time adjusting. Criticism of the other parent causes tension and can be just as destructive as fighting. The best way to help children is to have all divorce and custody discussions, whether peaceful or argumentative, in private. Children should only be involved in calm clear discussions that either explain how their daily lives will be affected or to understand their feelings and wishes.

Cooperative parents can protect children from the stress of divorce. There are many resources for parents wishing to help their children adjust, such as KidsHealth.org, which offers valuable advice on how to break the news, handle reactions, and aid in the coping process.

While the fear of how divorce affects children is a logical one, parents must keep in mind that they have significant control over those affects. Of course, divorce is not the ideal situation for any family, but in certain circumstances it can be the right solution. It does not always translate to negative affects on children, especially if they have at least one parent willing to put them first.

If you fear your children will be negatively affected by your divorce it is best to consult with a family counselor or therapist and discuss your thoughts with your divorce attorney or mediator, who may provide insight into this very common concern.

COMPREHENSIVE LOOK AT A PARENTING PLAN

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A parenting plan is undoubtedly one of the most emotional parts of working toward a full Marital Settlement Agreement. Many parents may fear that their time will be unfairly restricted. Knowing what to expect before beginning to develop a plan will ease stress and help lead to a fair agreement that is in the best interest of the children and fair to each parent.

TYPE OF CUSTODY AND REASON FOR SELECTION

parenting planThe first major decision to be made when entering into a parenting plan is the type of custody. Naturally, most parents would like as much time as possible with their children while still ensuring they have liberal access to the other parent. Types of custody include: sole legal and physical custody, joint legal and physical custody, joint legal custody with one parent designated the Parent of Primary Residence (PPR) and the other the Parent of Alternative Residence (PAR).

Before discussing this with your spouse or attorney it is wise to take some time to gather your thoughts and set your expectations. What is the current parenting situation? Has one parent been the primary caregiver? How will your schedule (and your spouse’s) change after the divorce? What are the children’s expectations?

Once you have answered these types of questions, set real expectations. For example, if both parents have been equally involved in parenting thus far, joint legal and physical custody is a likely outcome. Give yourself an idea of what you are willing to compromise on. When you feel ready, discuss your expectations with your spouse and mediator or attorney. You and your spouse may be on the same page, and if not your divorce mediator or attorney will guide you through the process of settlement.

RESIDENTIAL SCHEDULE, HOLIDAYS, AND VACATIONS parenting time schedule

This schedule is necessary to determine where the children will reside each day of the year, what contact they will have with each parent, and how the pick up and drop off will work. A typical residential schedule will set forth the parenting time of the PAR, which may include alternate weekends and weekly dinner visits. It is important to agree upon exact start and end times for the parenting time in the plan; however, these times can be changed upon verbal or written agreement of both parents. In the event that one parent is not adhering to the agreement, the executed parenting plan will be followed.

Other issues to be addressed include school and social events, activities, camps, sporting and extracurricular events, transportation, and delays in pick up and drop off. In this section you may also address the use of childcare and babysitters during the custodial parenting time and how to proceed with introducing the child to a serious significant other.

Regardless of the custody arrangement, children should have liberal access to both parents via telephone or video calls when appropriate. Decide upon what time and how often calls may be allowed.

HOLIDAYS

The comprehensive parenting plan will also set forth the detailed schedule for Holidays. Each parent will have odd or even years to spend with the child for each holiday, school break, and the child’s birthday. This can be negotiated with your spouse if you wish to have parenting time every year on a certain holiday. Holidays must be defined with start and end times; for instance, Christmas Eve may be defined as 4pm to noon on Christmas day. Make sure to tell your mediator or attorney about all the holidays you celebrate.

VACATIONS

The parenting plan will usually discuss the vacation time each parent is entitled to. The allotted vacation time is personal to each parent. The parenting plan will lay out details such as informing one another of itineraries, phone contact, and obtaining the child’s passport. With the consent of both parties’ additional vacation time may be taken even after the agreement is in effect.

MEDICAL AND SCHOOL RECORDS

Unless otherwise agreed upon, the parenting plan will entitle both parents to all medical and school information. This includes any information, documents, and communication from the child’s pediatrician, general physician, dentist, specialist, counselor, consultant attending the child, or reports or communication from any teacher or school giving instruction to the child.

DECISION MAKING

parenting time This is usually broken down into two categories: day-to-day and major decisions. It is highly likely that your parenting plan will give the authority of day-to-day decisions to the parent with whom the child is residing that day. Major decisions such as those involving health, education, religion, and other important matters will almost always require consulting with one another in a joint custody arrangement, regardless of whether one parent has been given the right to make the final decision if an agreement cannot be made. The procedure for emergency decisions should also be discussed to minimize future conflict.

Familiarizing yourself with what a parenting plan entails will help you move through the divorce mediation or litigation journey with less stress. Children are the most important part of any divorce and their best interests should always be put first.

WHAT IF MY EX STOPS PAYING CHILD SUPPORT?

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Unfortunately, unpaid child support is a not an uncommon frustration among custodial parents; however, there are a number of options available for enforcement and modification of child support orders in accordance with federal and New Jersey Law.

Financial and emotional support are critical to a child’s well-being and when one parent does not take this responsibility seriously, it should not be overlooked. Child support covers the financial component of a child’s well-being, providing compensation for ongoing expenses associated with basic needs until the child reaches age 18 or is no longer enrolled in high school or secondary education.child support

Under NJ family law, the right to child support belongs to the child and not the parent, which means that its purpose is not to protect either parent but solely to protect the best interest of the child. Parental obligation to pay child support remains the same regardless of the state of the parent-child relationship. While child support requests are commonly made during divorce proceedings, parents who are legally separated or do not live with one another are bound by this legal obligation.

If your child’s parent stops paying child support, the best course of action is to consult an experienced New Jersey family law attorney and seek enforcement of the existing child support order. If the obligor, the parent who owes child support, lives in another state, the Uniform Interstate Family Support Act (UIFSA) will ensure enforcement and modification can take place with no conflict due to orders issued by courts of different states. While UIFSA enhances the court’s ability to enforce child support orders that were issued in another jurisdiction, it restricts NJ courts from entering or modifying an order established by a court with jurisdiction. It also gives NJ courts jurisdiction over non-resident defendants. Under UIFSA only one support order exists at a given time.

Fortunately, New Jersey has a wide range of child support enforcement methods in accordance with Rule 5:7-5. Some of the most common and effective methods include:

  1. INCOME WITHHOLDING: wage garnishment, in which income is withheld from the obligor’s paycheck, is one of the most effective ways of enforcement. Pursuant to N.J.S. 2A:4-30.97 through N.J.S. 2A:4-30.103, an employer notified of an income withholding order must comply with the order regardless of what state is was registered. Income withholding may also be applied to all incomes used to calculate support including unemployment, workers’ compensation, and certain disability benefits.
  2. NJ CHILD SUPPORT LIEN ACT: a child support judgment establishes an automatic prioritized lien against the net proceeds in excess of $2,000 of any lawsuit judgment or settlement, arbitration award, workers’ compensation award, or inheritance. 
  3. FINANCIAL INSTITUTION DATA MATCH: if child support is three months behind, the obligor’s financial assets will be subject to seizure. The financial institution is required to surrender the assets after proper notice and a 30 day contest period. A separate court order must be established for the probation department to identify and seize the obligor’s financial assets in accordance with N.J.S. 2A:17-56.57.
  4. TAX OFFSET OR INTERCEPT: tax refunds may be used to pay child support arrears that exceed a certain amount. Payments due to the State for public assistance benefits paid as child support are first to be paid with the federal tax refund, while the remaining amount is given to the obligee. Generally, state tax refunds are first used to pay the obligee-parent. To qualify for federal tax offset, the amount of unpaid support must be at least $150 in public assistance cases and $500 in non-public assistance cases. For state tax offset the amount of unpaid support must be equal or greater than one month’s support obligation.
  5. APPOINTMENT OF RECEIVER; ASSET SEIZURE: the court may also appoint a custodial receiver to take possession of the obligor’s property and sell or use it to satisfy amounts due under a support order pursuant to N.J.S. 2A:34-23.

Other than income withholding, the rest of the techniques above are applied after failure to comply with the child support order. Moreover, if the obligor still fails to willfully comply with the support order, more severe enforcement may occur in the form of coercive sanctions, pursuant to R. 5:6-5 (enforcement of orders). This permits the court to proceed by carrying out any combination of the sanctions in R. 5:3-7 which include:

  1. Ordering temporary incarceration or issuing a warrant to be executed upon the obligor’s failure to comply in the future; and
  2. Suspending any state occupational or driver’s license; and
  3. Imposing economic sanctions; and
  4. Requiring the delinquent obligor to participate in an approved community service program; and
  5. Ordering any other equitable remedy deemed to be appropriate.

These coercive sanctions are not intended to be used as punishment, but as a way to facilitate enforcement. Typically, an ability to comply hearing is held before the court orders these sanctions to ensure that the obligor has the present ability to pay. Therefore, incarceration is used sparingly in situations when is it likely to lead to compliance with the child support order.

While New Jersey law has numerous ways to protect children and custodial parents in this matter, it can be a tedious and draining process to get payments made regularly if the obligor is unwilling to comply with any order or agreement. At Armour Law, we will help you modify your existing order with the court and ensure that all appropriate enforcement methods are employed.

5 TOP REASONS NOT TO MEDIATE DIVORCE

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What to Consider Before Opting to Mediate Divorce

While divorce mediation has significant benefits, it is not appropriate for every situation. There are numerous factors that must be considered before deciding to mediate divorce or opt for traditional litigation. It is important that you and your spouse both understand what mediation is and that neither party is being pressured into it.

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Waste of Time and Money

While mediation can be economical and time saving in many instances, it is not always so. If both parties are willing to cooperate with the process the outcome will likely be positive; however, if one or both spouses do not intend to be honest and open to compromise, it is likely to fail. Failed mediation means that litigated divorce is the next step. Both spouses must find their own attorneys (the mediation attorney cannot represent either party) and pay attorney and court fees associated with a new divorce proceeding. Information revealed during mediation may not be used in court, which means the discovery process must generally begin from the beginning. In addition, both parties are left with the bill from mediation and a loss of time.

Emotion

The dynamics of one failing marriage are never identical to another. Couples who plan to mediate divorce must consider their current and past personal relationship, and each spouse must consider their own emotions. While one couple may be amicable, agree to one another’s wishes completely, and have a minimal amount of negative, resentful, or sentimental emotion surrounding the divorce, another couple may find themselves too emotionally involved and angry to sit together through hours of mediation. Gauging where your relationship falls between these two ends of the spectrum will help you and your partner decide if mediation is right for you.

Power Imbalance

If one spouse is more articulate, has all the financial resources, or abusive to the other it can surely be detrimental to the divorce mediation process. For instance, in a marriage with a history of domestic violence mediation is likely not an appropriate choice as the victim may feel pressured or intimidated during sessions. Spouses who are victims, have fewer resources, or are inarticulate will usually have a more difficult time asserting themselves during mediation.

Court Procedure

The formality of the court in litigated divorce can be beneficial when it comes to power imbalances, truth, fairness, and evidence. Attorneys are able to use the court to have witnesses testify or produce evidence, while mediators cannot force the truth to be given by all parties. Court procedures also help ensure that both parties are treated fairly, whereas mediation is less able to help protect a party from an aggressive or intimidating spouse. This can play a crucial role in making sure the less aggressive spouse does not unfairly settle and lose what is rightfully theirs.

No Legal Advice

Even if a mediator is an attorney, they are not allowed to provide either side with legal advice. They are to act as a neutral party and are unable to speak to the parties about the divorce outside of mediation sessions.

Choosing to mediate divorce is a great alternative to litigation but it is not recommended in all cases.  Deciding whether to mediate or litigate may be decided early on, as early as the contemplation of divorce.  On the other hand, you may decide to mediate at any time during the litigation process. For instance, once a complaint is filed both parties could inform their attorneys that they wish to mediate.  Their attorneys could be present at the mediation sessions or they may mediate without attorneys. This option allows for the parties the benefit of being provided with legal advise during the mediation process through their individual attorneys.

Each case is significantly unique and an experienced mediator can help determine if mediation is appropriate.  At Armour Law Firm we recognize the importance of serving these diverse needs and provide mediation, collaborative divorce and  traditional litigated divorce services.

GETTING FAMILIAR WITH PRENUPS IN NJ

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What are Prenups in NJ?

A prenuptial agreement, also known as an antenuptial agreement or premarital agreement, is a written contract between two people planning to marry. It sets terms of possession of assets, management of future earnings, and control or division of property should a marriage end in divorce; however, it cannot adversely affect future child support.

Prenups in NJ go into effect immediately after a legal marriage takes place. It is possible to amend prenups in NJ after marriage; however, all of the changes to the initial agreement must be acknowledged and signed by both parties.

Although it is not required by NJ law, it is recommended that each party be represented by their own attorney to ensure their best interest.NJ prenups

Why is a Prenup Necessary?

Prenups in NJ are especially common when both or one party has substantial assets, high income, potential inheritances, children from a previous marriage, or a negative history regarding finances with a prior spouse.

Although prenups in NJ tend to have a negative connotation, they can actually serve to make a relationship stronger and open up a healthy financial dialogue. Many couples experience marital strife or divorce due to financial differences, but being open with one another from the engagement period may help avoid misunderstandings.

Prenups in NJ also help protect assets or property that has more than just monetary value. For example, an inherited family property may be of significant sentimental value to a person. Deciding what will happen with your spouse ahead of unforeseen circumstances will lead to a more fair settlement, as opposed to leaving such an important and sensitive matter for the courts to decide.

New Jersey Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act was adopted by NJ in 1988 and outlines the requirements of prenups in NJ. In addition to definition and formalities it covers the contents and enforceability of a premarital agreement.

According to section 37:2-34, the contents of a prenup may include:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The Uniform Premarital Agreement Act also states that if a party alleges that an agreement should not be enforced, the burden of proof falls on them to show that one or more of the following from section 37:2-38 is present:

a. The party executed the agreement involuntarily; or

b. The agreement was unconscionable at the time enforcement was sought; or

c. That party, before execution of the agreement:

(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 of the property or financial obligations of the other party beyond the disclosure provided;

(3) Did not have, or reasonably could not have had, 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.

d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law.

In 2012, Governor Chris Christie strengthened the enforceability of premarital agreements by signing a law that amended N.J.S.A § 37:2-38 and N.J.S.A § 37:2-32. This removed a provision stating that prenups in NJ could be invalid if unconscionable at the time of enforcement, and left unenforceability to those agreements which were unconscionable at the time they were executed.
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Considering a Prenup

Forbes.com contributor Jeff Landers provides an interesting perspective on prenups. He describes them as being very similar to wills in that they are carefully thought out documents centered on open communication. The estate of a person who passes away without a will is divided according to the government, not friends or family; should a marriage end in divorce without a prenup, assests and property are divided by the courts, not by the thoughtful agreement of both parties. In this way, a prenup, like a will, can help provide fairer distribution.

Contemplating a prenup can be intimidating, and broaching the subject with a future spouse during a time full of joy, excitement, and wedding planning can be very difficult. It is important to keep in mind that drafting a prenuptial agreement does not have to be a negative experience and it can be beneficial to both partners in the long run. While no one hopes for marriage to end in divorce, it can be in the best interest of both spouses to have control of their financial futures should it occur.