There’s one thing for certain. If go through the time and expense of entering into a premarital agreement, you want to make sure it’s actually enforceable. Otherwise, your efforts may literally feel like a waste of money and time if your marriage doesn’t work out.
First, a little background about prenuptial agreements. You might think they take the romance out of marriage. However, there are many cases where they are beneficial. That said, that doesn’t mean they come without legal requirements.
It was 1988 when the New Jersey legislature first made laws regarding agreements between those planning to get married. In 2006, the law actually became the "Uniform Premarital and Pre-Civil Union Agreement Act."
The purpose of premarital agreements deals solely with the parties’ assets and liabilities. Therefore, a premarital agreement does not address custody, parenting time, or child support. According to NJSA 37:2-33, the agreement must be in writing and signed by both parties. A statement of the related assets must be attached to the agreement.
A premarital agreement is not just significant in the event that a marriage fails. Although many couples like to make decisions together, a premarital agreement can act as a contract regarding the rights and obligations of property during the marriage. For example, a wife who owns a vacation home does not need her husband’s consent to sell or lease the property. Of course, that only applies if the vacation home purchased before marriage is listed as an asset in the prenuptial agreement.
Enforcement of the Premarital Agreement
New Jersey law also addresses the enforcement of premarital agreements. So, what happens if there is a dispute about the enforcement of a prenuptial agreement? It will be up to the party alleging the agreement is unenforceable to provide clear and convincing evidence that the agreement is invalid. NJSA 37:2-38 provides reasons that could negate the enforcement of a premarital agreement as follows:
- One of the parties did not voluntarily execute the agreement.
- The agreement was determined unconscionable when it was executed, as determined by the court. The reasons a judge may find a premarital agreement unconscionable include:
- Full and fair disclosure of one of the parties’ earnings, property, and financial obligations was not provided before the agreement was signed.
- One of the parties 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.
- One of the parties did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
- The parties did not have independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
Once again, the burden of proof for disputing the enforceability of a prenuptial agreement falls on the party making the claim. Among other things, a recent New Jersey Appellate Court decision dealt with this issue.
Nullification of Premarital Agreement
At the end of last month, the New Jersey Appellate Division submitted an unpublished legal opinion in the matter of Dobre v. Dobre, NJ: Appellate Div. 2018. The fact that the decision is unpublished means that it only applies to the named parties. It is not considered precedential law.
Lillian and Niksa Dobre met in 2003 and married in 2004. Lillian indicated Niksa first came to the United States in 1999 from Croatia. However, Niksa testified that he moved to the country in 2001. He first came on a tourist visa and later obtained a media visa while working for a newspaper agency from Montenegro. The media visa was achieved with the help of George Akst, an immigration lawyer.
Lillian acknowledged that Niksa’s first language is Serbian and that she also spoke the language. According to Lillian, the two conversed in both languages.
When Niksa asked Lillian to marry him, she refused unless he agreed to sign a premarital agreement. Lillian owned a great deal of property and was also the recipient of a number of gifts from her wealthy mother. She testified that Niksa wanted American citizenship and was therefore okay with executing the document.
Lillian hired an attorney to draft the prenuptial agreement, which addressed the parties’ assets and debts. The language of the agreement discusses what would happen in the event the couple divorced. A schedule purporting to be Lillian’s assets and liabilities is attached to the agreement.
Independent Legal Counsel
In accordance with the statutory requirements, the drafted agreement also contains a sentence that reads that both parties “"have each been independently represented with respect to the negotiations and preparation of this agreement." Meanwhile, legal counsel for neither party was identified.
Interestingly enough, Niksa says that he didn’t even find out about the existence of a premarital agreement until after his wife filed for divorce in 2013. He only recalled a request to sign papers regarding life insurance benefits.
Lillian stated that Niksa knew full well about the document. In fact, Niksa consulted with his immigration attorney before signing the agreement. Lillian claimed that she accompanied Niksa to Akst’s office and signed the papers there. A Serbian interpreter was not present when the agreement was executed.
One problem. George Akst testified that his practice is limited to immigration law. Furthermore, he says he never counseled Niksa on the premarital agreement. The agreement was not signed in his office.
After reviewing the facts and circumstances, the lower court found the prenuptial agreement invalid. “The record lack(ed) any convincing evidence that defendant, before signing the agreement, consulted with independent counsel or that he ‘voluntarily and expressly waive[d], in writing, the opportunity to consult with independent legal counsel."