I Learnt It the Hard Way: A Prenup is Like Buckling up before hitting the Road

Who wants to think that their marriage might not work out? I certainly had the rose-tinted spectacles on when I married my now ex-husband. I loved him, I thought he loved me, and that was all that mattered. I was advised by my family to get a prenup before tying the knot, as I owned my own business; they wanted to make sure that what was mine stayed mine, no matter what happened. I didn’t listen, and I paid. Heavily.

What is a Pre-Nuptial, or Premarital, Agreement?

A premarital agreement is one which can be entered into between two spouses-to-be. It is created to lay down the rights and obligations of each spouse with regards to any property each had acquired before the marriage, and property acquired after marriage, and how these would be divided between the spouses in case of a divorce. The premarital agreement must be in writing. Also, as stated in a blog article on ruvololaw.com, the premarital agreement should be executed well in advance of the marriage date. The Uniform Premarital Agreement Act (UPAA), created to give all the states a template for a law regarding premarital agreements, provides the ground rules regarding premarital agreements. It sets down what can be contained in a premarital agreement, the format in which such an agreement has to be made and so on.

The Fine Print Regarding Premarital Agreements

The UPAA also sets down the rules regarding the enforcement of the premarital agreement. A premarital agreement can’t be enforced in case the agreement was not entered into voluntarily by either one of the parties. A premarital agreement also can’t be enforced if it is found to be unconscionable at the time that it was executed. The agreement is unconscionable if any of the following apply.

a) If either party was not provided a fair disclosure of all the property and financial obligations of the other party.

b) If either party did not voluntarily waive, in writing, the right to disclosure of the property and financial obligations of the other party beyond the disclosures already given.

c) If either party could not reasonably have known about the property or financial obligations of the other party.

Prenuptial Agreements in New Jersey

The New Jersey premarital statute has some additional requirements. For one, as per New Jersey law, there is a third way in which a premarital agreement can be found to be unconscionable, as per an article in the Journal of the American Academy of Matrimonial Lawyers. Thus, an agreement can be found to be unconscionable in New Jersey if one party, due to lack of property or inability to find unemployment, would find himself or herself without means of support if the marriage were to end, would become a dependent of the state following divorce, or would have a standard of living far below that which he or she had during the marriage. Second, New Jersey courts require the person who is claiming the agreement to be unconscionable to provide the proof for this.

What Happens if You Don’t Have a Prenup

Well, my marriage ended, despite my best intentions (I can’t speak for my ex). As per the divorce laws of New Jersey, which call for an equitable distribution of all marital assets, he got an equal share of everything, including a share of my business. My business, which I had poured my heart and soul into. My business got commingled into the marriage as my ex had worked in my company during our marriage. Yeah, that hurt. If only I had read this article on forbes.com, which says that, “if you divorce without a prenup your assets will be divided according to the laws of your state, not according to what you believe to be right or fair”!