Planning to Get Married? Consider How a Prenuptial Agreement Can Help

Whether you are getting married at the start of your career, or contemplating a second or third marriage, an agreement between prospective spouses can save much time, money and litigation, if prepared correctly. Within the agreement, parties can address inheritance, support, division of assets and liabilities.  Common provisions of a prenuptial agreement include such issues as spousal support, division of assets and rights of inheritance. Where one spouse has a large asset that he or she owns before the marriage begins, it is not unusual to obtain a prenuptial agreement to set out how the asset will be divided in the event of divorce, if at all. In cases where the spouse is part or full owner of a family business, this is a very common request. The amount or existence of spousal support may also be predetermined or waived. Parties may also wish to protect real estate from future division in case of divorce.

The purpose of a pre-nuptial agreement is to make sure that both spouses had a fair understanding of what assets existed at the time the prenuptial was entered into, or at least knew that they had the right to request full disclosures at the time. If, at the time of divorce, it is revealed that one or both parties did not have a complete understanding of the assets that existed at the time, or did not waive this right voluntarily, this could be grounds to set aside the agreement. The person who may later seek to set aside the agreement is the one who bears the burden of proving the elements of the statute were not met

New Jersey law provides that all premarital agreements must be in writing, signed by both spouses, and a statement of assets must be attached to the agreement. The purpose of the statement of assets is to guarantee that there will be fair and reasonable disclosure of the respective spouses’ financial information, because misleading a prospective spouse about assets or liabilities at the time of entering into the prenup can be a basis for invalidation of the agreement. After the marriage, the premarital agreement may be amended or revoked only by a written agreement signed by both spouses.

The spouse that contests the premarital agreement has the burden of proof and must show by clear and convincing evidence that either s/he executed the agreement involuntarily, the agreement was unconscionable (i.e., grossly unreasonable) at the time it was signed, that the other spouse did not make a full and accurate disclosure of assets and liabilities on the statement of assets, s/he did not have adequate knowledge of the property or financial obligation of the other spouse, or s/he did not consult with independent counsel or did not voluntarily and expressly waive the opportunity for legal counsel before signing the agreement. It is recommended that both parties retain independent counsel. If one party chooses not to retain an attorney, they can later claim that they did not fully understand the ramifications of what they agreed to.

Above all, the agreement must be fair to both parties. The court will find the prenuptial agreement unconscionable if it is shown that the challenging spouse would be without reasonable support, would have to depend on public assistance or would be provided a standard of living far below the one s/he enjoyed before the marriage.

According to the Uniform Premarital and Pre-Civil Union Agreement Act (N.J.S.A. 37:2-31 et seq.), a prenuptial agreement can address the following issues:

  • Alimony (aka spousal support)
  • Choice of law governing the agreement
  • Creation of a will and/or trust to carry out the premarital agreement in the event of death
  • Division and control of property
  • Divisions of assets and investment accounts
  • Ownership and disposition of the death benefit from a life insurance policy
  • Ownership of premarital debts (mortgages, student loans, credit cards, etc.)
  • Rights and responsibilities of both parties in other personal matters, if they do not violate public policy

Under New Jersey law, a prenuptial agreement cannot include provisions which adversely affect the rights of a child, such as support or custody.

How to Challenge a Pre-nup

1) The paperwork was not properly signed, witnessed, etc.

Prenups need to be written, signed by both parties, each in the presence of an appropriate witness, notarized, and executed prior to the wedding.

2) The agreement is deceptive

A valid prenuptial agreement requires complete financial disclosures. If there is evidence that one party was hiding premarital assets, or lied about the value of their premarital assets, a judge may rule to invalidate the agreement.

3) The agreement was signed under duress

If a party was forced to sign the agreement under threat of physical, financial, emotional, or any other type of pressure, the agreement is likely not valid. The burden of proof is on the alleged victim to provide evidence of the coercion. Signing on the eve of the wedding can be used to show duress, threats to call off the wedding causing embarrassment can also be used to show duress.

4) One or both parties lacked the mental capacity to consent

A prenuptial agreement may be rendered void if it can be proven one or both parties signed the agreement while under the influence of alcohol or drugs, or otherwise did not have the mental capacity to render consent.

5) The agreement was signed too close to the wedding date

If one or both parties did not have enough time to thoroughly review the contents of the agreement before signing, the judge may rule to invalidate the agreement.

6) The agreement was signed without legal counsel

Both parties should be represented by their own separate legal counsel. If both parties attempt to “share” the same lawyer, it presents a clear conflict of interest and may provide future grounds to void the agreement entirely. If one party pays the fees for the other lawyer, or otherwise has actual or perceived financial control of the other parties lawyer, that can lead to a claim of undue influence or duress. If one party refuses to hire a lawyer, they must sign a statement explicitly stating they were urged to seek legal counsel but chose not to do so.

7) One-sided, ridiculous, or otherwise unconscionable provisions in the prenup

If a judge believes the terms of the prenup are unconscionable, the agreement may be rendered invalid at his/her discretion. This can include (but is not limited to) terms causing unnecessary financial hardship, and conditions involving sexual acts, appearance, weight gain/loss, or other private behaviors.

8) Amend or eliminate the prenup with the consent of both parties

Prenuptial agreements can be amended after the marriage to reflect changes in life circumstances. To do so, both parties must sign a second agreement that is subjected to the same legal and ethical standards of an original prenuptial agreement.

If done correctly, a prenuptial agreement can be an effective tool for both parties to dictate what happens in the event of divorce or death.

Navigating Custody and Parenting Time Disputes In Your Divorce.


Navigating child custody in New Jersey is often the most stressful part of a divorce. It is often difficult for one or both parents to realize that they will not have their child or children with them at all times. Navigating how to divide the time can be very challenging.

Physical custody is just that: actual custody of the child. Traditionally, one parent has primary physical custody of the child (which means that parent has the child for a majority of the time), with the other parent having parenting time with the children (i.e. every other weekend). It’s becoming more common, however, for parents to share physical custody, meaning they divide time with the child relatively equally so long as that schedule is in the child’s best interests. The trend in New Jersey is toward a shared or 50/50 parenting plan. The statutes and case law is gender neutral, neither the mother nor the father has an advantage. While this does not work in all cases, if the parents live close and are willing to work with each other this can be the best result. The courts always look to the best interest of the children (which may not always be best for the parents). We work with our clients to determine what is best for the children and to minimize conflict during this taxing process. The less conflict between the parents, the better the children are able to handle the divorce.

What Is Parenting Time and How Does it Work

Separation and divorce can impact your relationship with your children. The quantity and quality of time your children spend with each parent is important for a healthy post-separation and post-divorce relationship. I will work with you to ensure your children are protected and their best interests are met. It is often painful for a parent to realize that no matter what the custody arrangement is, they will no longer have their child with them all of the time or for all of the holidays. I can help navigate this difficult period.

I will work with you to design a specific parenting plan that defines a clear schedule of the time children are to be in the care of each parent. The plan also addresses a parent’s right to participate in decisions relating to education, healthcare, religious upbringing, and financial support. Each party has to compromise, communicate, and cooperate as it pertains to issues relative to their children. I am prepared to seek court intervention when the other party does not adhere to these protocols.

Frequently Asked Questions

What are the different types of custody in New Jersey?

There are two types of custody in New Jersey: legal custody and physical custody. Legal custody refers to a parent’s authority to make significant decisions about a child’s life, including but not limited to decisions related to the child’s health, education, safety, welfare and religion. Physical custody refers to whether the child is physically residing with a parent. Various physical custody arrangements exist wherein one parent is considered the parent of primary residence because the child spends more than 50% of their time with that parent, leaving the other parent designated as the parent of alternate residence because the child spend less than 50% of their time with that parent. Parents can enjoy a shared physical custody arrangement wherein the child spend 50% of their time with each parent whereby neither is designated the parent of primary or alternate residence.

What are the factors that the court considers during a custody case?

The custody statute in New Jersey sets forth the following factors to be considered by a court when determining a custody and parenting time arrangement that is in the best interests of the child: the parents’ ability to agree, communicate and cooperate in matters relating to the child;  the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;  the interaction and relationship of the child with its parents and siblings;  the history of domestic violence, if any;  the safety of the child and the safety of either parent from physical abuse by the other parent;  the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;  the needs of the child;  the stability of the home environment offered;  the quality and continuity of the child’s education;  the fitness of the parents;  the geographical proximity of the parents’ homes;  the extent and quality of the time spent with the child prior to or subsequent to the separation;  the parents’ employment responsibilities;  and the age and number of the children. It is my goal to formulate a custody plan that does not require a custody trial. However, if the other side is not willing to work with us, we will force them to do so through the court system. I will fight for your rights to be a full time and fully integrated parent and presence in your child’s life.

How Do New Jersey courts assess the fitness of parents?

There are various evaluations a court could require a parent to undergo when determining a custody and parenting time arrangement of a child. For example, if parents are unable to agree as to what custody and parenting time arrangement is in the child’s best interests, a court could require a custody evaluation which will include a psychological evaluation of a parent. In other circumstances where there are concerns about a parent’s alcohol or drug abuse, a parent may be required to undergo an alcohol and substance abuse evaluation and/or risk assessment. Other circumstance may require a parent to undergo a psychological or psychiatric evaluation.

Does the Court consider the children’s wishes?

Yes, but only if the child is old enough in age and maturity.  More specifically, under New Jersey’s custody statute, one of the factors a court must consider when determining a custody and parenting time arrangement that is in the best interests of a child is “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.” The law does not provide for a specific age of the child and is dependent on the specific facts of a case and needs of a child. Often even older children may make decisions that are not actually in their best interest.

How does a person apply for custody in New Jersey?

A person can apply for custody of their child by filing a formal application with a court. If the parents of a child are unmarried, then a parent will need to file a Verified Complaint with the Superior Court of New Jersey under the FD docket seeking to establish legal and physical custody of the child and a parenting time schedule, if applicable. If the parents of a child are married and going through a divorce, then a parent will need to file a Notice of Motion with the Superior Court of New Jersey under the FM docket seeking to establish legal and physical custody of the child and parenting time schedule, if applicable. In either situation, the parent filing the application must provide notice to the other parent at the same time they file the application with the Court. The courts in New Jersey do provide the opportunity to participate in custody and parenting time mediation prior to making the decision to have a custody trial.

Can a custody arrangement be modified?

Once a custody arrangement is established, it can only be modified if a parent makes a formal application to a court and is able to show that circumstances have substantially changed from the prior custody arrangement and that the best interests of the child require the custody arrangement be modified. Alternatively, a child’s parents can agree at any time to modify a custody arrangement without having to make a formal application to a court. The parents can also agree to revisit the custody and parenting arrangements periodically without a showing of a substantial change of circumstances.

What type of parenting time schedules are available in New Jersey?

Parenting time schedules can be crafted in numerous different ways depending on what a court or the parents consider to be in the best interests of a child. In some cases, a parenting time schedule may allow a parent to have alternate weekend parenting time with the child, while the other parent is the primary physical custodian of the child. In other instances, the same parent who enjoys alternate weekend parenting time may also enjoy weekday evening parenting time one or two times a week. Parties are encouraged to be flexible and creative when creating parenting time schedules that will allow equal access to both parents but is also in the best interests of the child. I will work with clients to create schedules that maximize their time with their children in ways that make sense for the family.

Can a parent’s parenting time rights be terminated completely?

While it is uncommon and not very likely in New Jersey, there are circumstances wherein a parent’s rights to a child can be terminated. This can happen either voluntarily or involuntarily. Under New Jersey law, a parent’s rights may be involuntarily terminated if 1) a conviction has been entered against a parent for abuse, abandonment, neglect or cruelty against the child, 2) the best interests of the child require that (s)he be placed under guardianship, 3) a parent has failed to remove circumstances that are considered harmful to the child for a period of one (1) year or more, 4) a parent has abandoned the child, or 5) a parent has been found guilty of a crime involving the safety and well-being of the child, that child’s other parent, or another child of that parent.

What is supervised parenting time?

Supervised parenting time is implemented by a court when “there has been a history of child abuse, medical disabilities, psychiatric problems or other situations where the safety and welfare of the child may be jeopardized.” Supervised parenting time includes the presence of a third-party to “supervise” a parent’s parenting time. This third-party may be an individual specifically trained and appointed by the court to act as a supervisor. In other instances, the individual may be a third-party, sometimes a family member, agreed upon by the parents.

What happens if the child does not want to have parenting time with a parent?

The issue of whether a child will be required to have parenting time with a parent despite not wanting to see them will be governed by what a court believes to be in a child’s best interests. Under New Jersey’s custody statute, a court will only consider the preference of a child if that child is of sufficient age and maturity but that still does not mean the child’s wishes are controlling even if they are of sufficient age. Because there is no specific age called for in the statute, there are circumstances in which a child will be required to have parenting time despite not wanting to see the parent. In that case, I may recommend counseling. If the child does not want to see the parent as a result of alienation by the other parent, it is a very serious matter that will need to be addressed aggressively in order to preserve the relationship between the parent and child. There are times when the court could consider a change of custody to combat pervasive alienation.

What can be done if a party fails to comply with the parenting time schedule?

The New Jersey Court Rules provide various remedies to a party if another party fails to comply with a parenting time order. A formal application must be filed to seek such remedies which include: (1) compensatory time with the children; (2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent; (3) modification of transportation arrangements; (4) pick-up and return of the children in a public place; (5) counseling for the children or parents or any of them at the expense of the parent in violation of the order; (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children; (7) participation by the parent in violation of the order in an approved community service program; (8) incarceration, with or without work release; (9) issuance of a warrant to be executed upon the further violation of the judgment or order; and (10) any other appropriate equitable remedy.

Failure to comply with a parenting plan or parenting time schedule is a serious matter that requires immediate attention, and at times court intervention.

How is custody determined in a case where the parties are not married?

If two parents of a child are not married, then a parent seeking custody of the child will need to file a formal application with the Superior Court of New Jersey under what is called the FD docket. A court will consider a number of factors when determining a custody and parenting time arrangement that would be in the child’s best interest. While a determination of custody of a child is the same whether two parents are married or unmarried, the court procedures are different for unmarried individuals.

Can parenting time be modified if ex-spouse is now living with another person?

Yes, sometimes. There are times when a court may impose restraints on a parent’s parenting time such that a new companion cannot spend the night where the children are located. However, such restraints are not often granted and are imposed in limited circumstances taking into account various factors, including but not limited to the age of the child, the length of time the child’s parents have been separated, the length of the new dating relationship and whether the child knows the new person, and any emotional or psychological condition of the child that may be impacted by exposure to the new companion. The courts recognize that both parties need to be able to move on with their lives, and often that means new relationships. This needs to be addressed on an individual basis.

What happens if a parent kidnaps a child?

If a parent withholds a child from another parent by removing them from New Jersey, then the parent remaining in New Jersey must file an emergency application in the State of New Jersey seeking an Order requiring the return of the child to New Jersey, as well as report such kidnapping to the state and local authorities. Once a New Jersey Order is obtained, you will need to make an application in the state where the child is located to have the New Jersey Order registered and enforced. Simultaneous with these Orders, the state and local authorities will be conducting their own investigation and work toward assisting you in returning the child to New Jersey.

What is a Guardian Ad Litem, and when is one appointed?

When circumstances require in custody and parenting time disputes, a guardian ad litem may be appointed by a court to act on behalf of a child. In custody cases, the purpose of a guardian ad litem is to represent the best interests of the child. The services rendered by the guardian ad litem are to the court on behalf of the child and include allowing the guardian ad litem to act as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child.

What is the UCCJEA?

UCCJEA stands for the Uniform Child Custody Jurisdiction and Enforecment Act. The Act was created to avoid duplicate litigation in two different states and conflicting decisions between courts of different states. Under the Act, only one state at a time is permitted to exercise jurisdiction over the custody and parenting time of a child.  For example, if litigation is pending in another state relative to the custody and parenting time of a child, then New Jersey may not exercise jurisdiction. Similarly, if litigation is pending in New Jersey relative to the custody and parenting time of a child, then another state may not exercise jurisdiction.

What happens if a parent wants to relocate out of the State of New Jersey or to a location within the State of New Jersey that interferes with the parenting time of the other parent.

Any parent who shares joint legal custody of a child with another parent either requires the consent of the other parent with whom they share legal custody or obtain an Order from the court to relocate to another state. The court will determine whether such a move out of New Jersey is in the child’s best interest. There has been change in this area of the law recently through a number of new cases, making it harder for a custodial parent to relocate with a child outside of the state. There are also cases that address what happens if a parent stays in the state but moves a distance that makes regular parenting time impossible. The goal is to protect the best interest of the children. These cases often require a custody evaluation to determine whether the move will be in the best interest of the children. Relocation cases are fact sensitive, and whether you are the parent seeking to relocate or the parent seeking to have the children remain in the State of New Jersey, I can help you navigate this difficult time in a way that preserves your precious relationship with your children and your financial resources.