Prenuptial & Postnuptial Agreements in New Jersey

What a Prenuptial Agreement Actually Does

A prenuptial agreement is a contract executed before marriage that governs how specific assets, debts, and financial rights will be treated during the marriage and in the event of divorce or death. In New Jersey, these agreements are governed by the Uniform Premarital Agreement Act (N.J.S.A. 37:2-31 et seq.), which sets out clear requirements for what can be included, how the agreement must be signed, and when a court may refuse to enforce it. Understanding those requirements before you draft anything is not optional — it is the difference between an agreement that works and one that is challenged successfully years later.

At Atkins, Tafuri, Minassian, D’Amato, Beane & Miller, P.A., we have drafted and litigated prenuptial agreements for nearly 50 years. Clients come to us for two distinct reasons: they want an agreement that will hold up in court if it is ever tested, or they have received a draft from the other party’s attorney and need counsel who will read it carefully and negotiate on their behalf. We handle both situations with the same thoroughness.

What a Prenuptial Agreement Can and Cannot Cover

A well-drafted prenuptial agreement can:

• Designate which assets remain separate property throughout the marriage
• Determine how appreciation on those assets will be treated
• Establish or waive alimony rights
• Set parameters for the duration and amount of alimony
• Allocate premarital debts
• Define inheritance rights that protect children from prior relationships
• Protect business ownership interests by preventing a spouse from claiming an equity stake in a partnership or professional practice
• Safeguard business partners and co-owners from the consequences of a partner’s divorce

However, under New Jersey law, a prenuptial agreement cannot:

• Predetermine child custody
• Predetermine child support

Additional considerations:

• Child custody and support are always decided by courts based on the child’s best interests at the time of a proceeding
• Any provisions attempting to settle these issues in advance are unenforceable
• Including such provisions can create confusion without offering real protection
• A key part of legal counsel is ensuring the agreement reflects only what is legally enforceable and achievable

Enforceability: The Execution Details That Determine Whether Your Agreement Holds

New Jersey courts have set aside prenuptial agreements on several grounds, each of which is avoidable with proper process. An agreement signed under duress — including the pressure of an imminent wedding date — is vulnerable to challenge. Inadequate financial disclosure, where one party did not honestly and fully present their assets and income, is another common basis for invalidation. An agreement presented to one party without independent legal counsel, or without time to meaningfully review and negotiate, can also be set aside. This is why we advise clients to begin the prenuptial process at least three to six months before the wedding. The clients who describe the process as uncomfortable at first almost universally report that working through it gave them a stronger, more honest foundation than they had before.

Postnuptial Agreements and Independent Review of Existing Drafts

Married couples who did not execute a prenuptial agreement, or whose circumstances have changed substantially since they did, can enter into a postnuptial agreement. These serve the same functional purpose and carry similar enforceability requirements. Common triggers include one spouse starting a business during the marriage, receiving a significant inheritance, or one partner leaving the workforce to raise children. They are also used in reconciliation arrangements, giving both parties a clear understanding of financial expectations going forward.

Independent review of a draft agreement prepared by the other party’s attorney is not optional — it is essential. That attorney represents your fiancé, not you. Signing without independent counsel is itself a basis for later challenge, and it means no one has read the agreement with your interests in mind. Our attorneys review draft agreements carefully, identify terms that could disadvantage you, and negotiate changes before anything is signed.

Whether you are entering your first or second marriage, own a business, expect an inheritance, or carry significant debt, a prenuptial agreement drafted by experienced Bergen County divorce attorneys gives both parties clarity and protection. Contact us to schedule a confidential consultation.