New Jersey Prenuptial Agreements

A prenuptial or premarital agreement is an agreement between a couple considering marriage, wherein each parties’ rights and obligations concerning property division and spousal support, in the event of a divorce or death, are determined prior to the marriage. In New Jersey, prenuptial, or ante nuptial, agreements are governed by the Uniform Premarital and Pre-Civil Union Agreement Act., N.J.S.A. 37:2-31 et seq. The Act requires that a prenuptial agreement be in writing, contain a list of assets, and be signed by both parties. It provides that the agreement becomes effective upon the marriage or establishment of the civil union of the parties, and is enforceable without consideration. It also provides that the parties to a premarital or pre-civil union agreement may contract regarding:

1. The rights and obligations of the parties in any property of either or both of them whenever and wherever acquired or located;
2. 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;
3. The modification or elimination of spousal or one partner in a civil union couple support;
4. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;
5. The ownership rights in and disposition of the death benefit from a life insurance policy;
6. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy.

A premarital or pre-civil union agreement clause, which adversely affects child support, will be unenforceable, according to the Act. Parties to the agreement may amend or revoke the agreement in writing at any time. Any revocation or amendment must be signed by both parties, and is enforceable without consideration.

A premarital or pre-civil union agreement may be set aside if the party alleging that the agreement is unenforceable proves by clear and convincing evidence that the party executed the agreement involuntarily, the agreement was unconscionable at the time enforcement was sought, or that the 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.

A premarital or pre-civil union agreement that otherwise would be enforceable, will be so only to the extent necessary to avoid an inequitable result, should the marriage or civil union of the parties be determined to be void. 

Source:

LexisNexis, N.J.S.A. 37:2-31 et seq.

For further details visit New Jersey Family Law Attorneys or wants an appointment contact Bergen County Divorce Attorneys here: 3 University Plaza, Suite 350 Hackensack, NJ 07601

Telephone: (201) 771-1808

Removing Minor Children from the State of New Jersey

New Jersey law provides that when the Court has jurisdiction over a child of parents who are divorced, separated, or living separately, and the child has resided in the state for five years, or was born within the state, a parent cannot remove the child from the state without the consent of the other parent or the Court.  A parent seeking approval of the Court to remove a child from the state must show sufficient cause for the move, and in determining whether to allow the move, the Court will consider the best interests of the child and the visitation rights of the non-custodial parent.

N.J.S.A. § 9:2-2 governs the removal of children under the Court’s jurisdiction from the state of New State. The statute requires the establishment of "cause" to justify removal of a child from New Jersey to another state. The purpose of that requirement is to preserve the rights of the noncustodial parent and the child to maintain and develop their relationship. The Court's job is to balance those rights with the right of the custodial parent to seek a better life for himself or herself. The former requirement of New Jersey law that a custodial parent must prove a real benefit of the move in order to remove the child from the state was modified by the Court in Baures v. Lewis. The Baures Court held that a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the noncustodial parent. Baures v. Lewis, 770 A.2d 214, (N.J. 2001). This was expanded upon by the Supreme Court in Holder v. Polanski, when it stated that short of any adverse effect on the child and his or her relationship with the non-custodial parent, a custodial parent should enjoy the same freedom of movement as a non-custodial parent. Holder v. Polanski, 544 A.2d 852, (N.J. 1988).

The Baures Court set forth the following twelve factors relevant to the custodial parent’s burden of proving good faith and that the move will not be inimical to the child's interests: 

1. the reasons given for the move;
2. the reasons given for the opposition;
3. the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
4. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
5. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
6. whether a visitation and communication schedule can be developed that will allow the  noncustodial parent to maintain a full and continuous relationship with the child;
7. the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;
8. the effect of the move on extended family relationships here and in the new location;
9. if the child is of age, his or her preference;
10. whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
11. whether the noncustodial parent has the ability to relocate; and
12. any other factor bearing on the child's interest.

A custodial parent seeking to remove a child from the state of New Jersey must show a good faith basis for the move, which may include lower cost of living, better employment opportunities, closer proximity to family, or higher education. When assessing the custodial parent’s good faith and the best interests of the child, the Court looks to the twelve factors set forth by the Baures Court. In making a removal determination, the Court will attempt to balance the non-custodial parent and the child’s right to maintain a relationship with the custodial parent’s right to freedom of movement.

For further details visit New Jersey Family Law Attorneys or wants an appointment contact Bergen County Child Support Lawyers here: 3 University Plaza, Suite 350 Hackensack, NJ 07601
Telephone: (201) 771-1808