A premarital or prenuptial agreement—also known as a prenup—is an agreement between prospective spouses made in contemplation of marriage and is effective on marriage. A premarital agreement must be in writing and signed by both parties.

Laws vary from state to state, but the rights and obligations the parties may agree to in a premarital agreement may include:

• the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

• the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

• the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

• the modification or elimination of spousal support or alimony;

• the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

• the ownership rights in and disposition of the death benefit from a life insurance policy;

• the choice of law governing the construction and interpretation of the agreement; and

• any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child Support May Not Be Adversely Affected by a Premarital Agreement

The right of a child to support may not be adversely affected by a premarital agreement.

Reasons A Premarital Agreement May Be Unenforceable

A premarital agreement is not enforceable if the party against whom enforcement is requested proves that:

• the party did not sign the agreement voluntarily; or

• the agreement was unconscionable when it was signed and, before signing the agreement, that party: (1) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) 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; and (3) did not have and could not reasonably have had adequate knowledge of the property or financial obligations of the other party.

A question of unconscionability of a premarital agreement is usually decided by the court as a matter of law rather than by the jury as a matter of fact.

Law is Often Located in State Statutes

In many states the law regarding premarital or prenuptial agreements is located in the state’s statutes—often in the family code or domestic relations code.

In New Jersey, a premarital or prenuptial agreement (prenup) is recognized and enforceable as long as it adheres to certain legal standards. The agreement must be in writing and signed by both parties. It can cover a wide range of topics, including the rights and obligations of each party to the other's property, the management and control of property, the disposition of property upon divorce or death, spousal support, the creation of wills or trusts, and the choice of law governing the agreement. However, a prenup cannot adversely affect a child's right to support. For a prenup to be enforceable in New Jersey, it must have been entered into voluntarily and without coercion. Additionally, it must not be unconscionable at the time of signing, meaning that both parties should have a fair and reasonable disclosure of each other's financial obligations and property, or have waived the right to such disclosure in writing, and have had the opportunity to understand the financial circumstances of the other party. If a prenup is found to be unconscionable or signed under duress, it may be deemed unenforceable by a court. The specifics of prenuptial agreement laws in New Jersey can be found in the state's statutes, particularly within the family code or domestic relations code.