New Jersey family courts are generally considered to have large equitable powers, meaning a Judge can look at the situation of the parties and make a decision that is fair to both parties. Until the summer of 2013, Judges could set aside the terms of a prenuptial agreement if circumstances had changed over the following years which would make enforcement of the contract deeply unfair, or unconscionable, to one side.
Thanks to a change in the law made effective on June 28, 2013, the unconscionability provision has been removed for all new prenuptial agreements (old ones remain unaffected). Thus, the terms of a prenuptial agreement made today will be in full force and effect ten, twenty or fifty years from now. All prenuptial agreements still require complete disclosure and all of the necessary requirements other contracts tend to have. In addition, provisions regarding custody can still be modified. However, most prenuptial agreements tend to deal with money, property and other assets, so this change in the law is considered a victory for proponents of premarriage settlement agreements. The changes apply to civil unions in addition to marriages.
The new language of N.J.S.A. 37:2-38 reads as follows:
The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:
a. The party executed the agreement involuntarily; or
c. The agreement was unconscionable when it was executed because that party, before execution of the agreement:
- Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
- Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.