That old prenup could hold up in New Jersey

Maybe it wasn’t pleasant and took some delicate maneuvering, but the two of you signed that old prenup back before you were married. Maybe it feels like a very long time ago or you two weren’t even living in New Jersey back then. Is that contract going to hold up here and now?

Say you want to want to break the back of a prenuptial agreement so you can strike a fresh divorce settlement from scratch. Or say you want to make sure a prenuptial agreement is ironclad, so you can count on it no matter what happens. What are your chances in New Jersey?

What kinds of clauses are possible in a prenup?

Attention-grabbing press reports frequently describe weird prenup clauses such as the maximum weight a bride or groom can attain, specifying a non-smoking marriage, or guaranteed post-separation cat visitation rights. Such clauses are not invalid just because they make some people laugh.

Generally, nearly anything can be included in a prenuptial agreement. More common clauses involve how property and retirement funds will be distributed in case of divorce or death, spousal support after divorce, and the like.

Two factors that can make a prenup invalid

First, although some fiancés find prenup “unconscionable,” a prenup that truly does fit the legal definition of unconscionable probably never was valid. Unconscionable basically means unreasonably unfair and unjust to one side, clearly not guided by conscience, or offensive to public policy.

Second, a prenup is a contract. To be valid, you both have to agree to it voluntarily and knowingly. So, if someone wasn’t allowed an opportunity to consult an attorney or didn’t have an adequate understanding of the assets, debts, or obligations of the other person, the prenup might have been invalid from the start.

Is a prenup signed in another state enforceable in New Jersey?

Probably, but show the prenup to a good attorney. Article I of the U.S. Constitution creates the right of Americans to sign contracts and then have them stay legal as they move around the country.

However, different states do have different laws about prenups, so there can be certain situations in which you may have a very hard time enforcing in one state a prenup clause signed in another.