Typically, couples enter into prenuptial agreements when either one or both have substantial premarital assets to protect. Prenups are becoming more popular as baby boomers divorce and remarry late in life after significant assets have already been accumulated. If someone has a business to protect, it can be designated as separate property in a prenup if it existed prior to the marriage.
However, sometimes when a couple decides to call it quits and there’s an existing prenuptial agreement, one of the spouses may choose to contest its validity. In fact, one study of members of the American Academy of Matrimonial Lawyers found that 44% of respondents had seen an increase in challenges to prenuptial agreements in their practices.
Prenuptial agreements can be set aside for a number of reasons, including:
- If it was signed too close to the wedding date. Prenups should be finalized at least a month prior to the ceremony. Springing it on your soon-to-be-spouse is no way to start a marriage – and a sure way to have it set aside.
- If one spouse did not have legal representation. Each spouse needs to have their own attorney participate in drawing up their prenuptial agreement.
- If one spouse misrepresents or hides assets or liabilities.
- If one spouse signed the prenup under the influence of alcohol or drugs or was mentally incompetent.
- If one spouse was pressured into signing by physical, emotional, or financial threats.
- If the prenup places limitations on child support or custody rights.
- If the prenup is deemed unconscionable by the court.
Contesting a prenuptial agreement upon the death of a spouse
A prenup is not only used to plan for divorce, it can also be used to plan for the death of a spouse. This is especially important for those marrying for a second or third time, with children from prior marriages that you want to inherit your assets. Even if you keep your assets separate from your new spouse and don’t add to those assets during your marriage, your children may still not receive the inheritance you wanted to leave for them.
New Jersey does not allow for a spouse to be disinherited unless the spouse consents to it via a right to election waiver. If you do disinherit, your surviving spouse can petition the court for their elective share of your estate, which is roughly one-third of the entire estate.
Protecting your interests and achieving results that support your needs is what you can expect from Cistaro Law. Contact us today for your free consultation.