Drafting a prenuptial agreement is not something you should do yourself, as there are certain things you may want to put into a prenup that a court could find unenforceable. You wouldn’t sign a business contract without guidance from legal counsel, and you should follow that same advice when it comes to your prenuptial agreement, which is also a contract.
Having qualified legal advice can save you from committing one or more of these six common mistakes in a prenuptial agreement:
Omitting important asset information.
It is not unusual for people entering into a prenuptial agreement to downplay their assets, intentionally omitting information to make their premarital estate seem smaller than it really is. If you do not disclose all your assets, you run the real risk of a court invalidating the agreement because it was negotiated in bad faith.
Not addressing separate property.
Things that have sentimental value to you or that you wish to have treated as separate property if your divorce will need to be addressed in your prenuptial agreement as outside the marital estate. This could include a business, a pet, or even premarital debt that, in case of a divorce, you want to be sure is not treated as marital debt that you could bear some or all responsibility for repaying.
Language that is legally unenforceable.
Including language that is in conflict with the law or public policy is a sure way to have your prenuptial agreement invalidated. Here are some examples:
- Excluding a spouse from retirement benefits that he or she has a legal right to claim benefits. Prenuptial agreements that contain provisions for a waiver of retirement benefits must be specific and conform to certain waiver requirements under federal law.
- Attempting to establish child custody or child support in the event of a divorce.
- Attempting to limit the reasons why one spouse may seek a divorce if that reason is not supported by the state’s divorce law.
- An agreement that tends to unreasonably encourage divorce or separation will likely be unenforceable.
Attempting to regulate spousal behavior.
Typically, any attempts to regulate spousal behavior via a prenuptial agreement will be unenforceable. Any language that attempts to define the number of children a wife must bear, who is responsible for cleaning the house, who works and who doesn’t, or even how often a couple has marital relations is likely to invalidate any agreement.
Child custody and support issues.
In determining child custody, New Jersey courts make decisions based on what is in the best interest of the children, not a prenuptial agreement. A court will not enforce provisions that define who gets custody of the children, eliminates or limits child support, or any language that attempts to dictate post-divorce parenting.
Every prenuptial agreement should include a severability clause so that if a court finds one provision in the agreement to be unenforceable, the rest of the agreement can still be enforced.
You can rely on Cistaro Law to skillfully negotiate and mediate your issues to a satisfactory resolution. Should the need arise, you can also count on our experience for being aggressive litigators if the situation calls for a more assertive response. Contact us today for your free consultation.