Prenuptial Agreements: should one be part of your wedding planning?

With wedding season right around the corner, it is important to consider one aspect of wedding planning that many couples overlook or find distasteful: a prenuptial agreement. As couples are marrying later in life or embarking upon a second marriage, it is reasonable to expect that assets and debts have come into being. A prenuptial agreement can address how those premarital assets and liabilities will be addressed if the marriage breaks down.


Understanding Prenuptial Agreements

A prenuptial agreement, commonly referred to as a “prenup,” is a legal contract entered into by a couple before they marry. This document outlines how assets and debts will be handled in the event of a divorce, separation, or death. While discussing a prenup may not be the most romantic aspect of wedding planning, it’s a practical step that can provide clarity and protection for both parties.

What is a Prenup?

At its core, a prenup establishes the property and financial rights of each spouse in the unfortunate event that the marriage ends. Preparing a prenuptial agreement is analogous to preparing a will and related estate planning documents.

Who Needs a Prenup?

Contrary to popular belief, prenups aren’t just for the wealthy. Prenups can be helpful for small/family business owners and anyone looking to add a degree of clarity and certainty in the unfortunate event of a divorce. This includes individuals with significant debts, those who own a business, and those who want to safeguard inheritances or personal assets.

What Does a Prenup Cover?

A prenup can cover a variety of issues, including:

  • Asset Distribution: How property and assets will be divided.
  • Debt Allocation: How debts will be handled and who will be responsible for them.
  • Spousal Support: If alimony will be paid, and if so, the terms of those payments.
  • Business Protection: How a business owned by one spouse will be treated.

However, there are limitations. In New Jersey, a prenup cannot address issues of custody, parenting time, or child support.

How to Get a Prenup

Obtaining a prenup typically involves the following steps:

  1. Discussion: Both parties should openly discuss their financial situations and expectations.
  2. Legal Representation: Each party should have their own attorney to ensure their interests are represented.
  3. Drafting: The prenup should be drafted, outlining all agreed-upon terms.
  4. Review and Sign: Both parties should review the document carefully before signing.

Conclusion

While the thought of a prenup may bring discomfort, it’s a strategic move that can prevent future stress and conflict. By setting clear expectations and protections, a prenup can actually strengthen the foundation of a marriage, ensuring that both parties enter the union with a mutual understanding of their financial partnership.


I hope this article provides a clear overview of prenuptial agreements and their importance. If you’re considering a prenup, it’s advisable to consult with a legal professional to understand the specific laws and requirements in your state.

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Do you live in Mercer County, NJ? Have you been thinking of getting a divorce?

At The Durst Firm we never tell a potential client if or when they should file for divorce. That is a deeply personal decision and one that should not be entered into lightly. Our role is to review the situation and advise as to various courses of action based on our extensive experience and knowledge

That being, if you are a Mercer County resident and are considering filing for divorce, the time to act may be NOW! As a result of recent changes enacted to address the extensive backlog in the Mercer County Family Court, AFTER APRIL 15, 2024 ALLL NEW DIVORCE FILINGS WILL BE RANDOMLY ASSIGNED TO THE FOLLOWING COUNTIES: (1) ATLANTIC/CAPE MAY (2) BURLINGTON, OR (3) MIDDLESEX. While appreciate any efforts to move cases along, we also appreciate that this move will place an incredible burden on our clients in terms of travel to the various locations and the increased costs associated with our travel to certain court appearances. We received news of this development on very short notice and are continually thinking of ways to mitigate the effects on new clients.

The best way to avoid having to incur the additional time and expense is to have your Complaint for Divorce filed in Mercer County before April 15, 2024. It’s not to late to get started and to get in under the wire. Contact us today to get started and secure the option to have your Mercer County divorce heard in Mercer County.

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How can I get a divorce if I don’t know where my spouse lives?

If you want a divorce but don’t know where your spouse lives, the process can be more challenging, but it’s still possible to move forward with the divorce proceedings. Here’s what typically happens in such situations:

  1. Attempt to Locate Spouse: You may need to make reasonable efforts to locate your spouse. This might involve searching through public records, contacting friends or relatives who may know their whereabouts, or hiring a private investigator. Document your efforts to demonstrate to the court that you’ve made a genuine attempt to find your spouse.
  2. Service by Publication: If you’re unable to locate your spouse after making reasonable efforts, you may be allowed to serve them with divorce papers through a legal process called “service by publication.” This involves publishing a notice in a newspaper approved by the court, typically in the area where your spouse was last known to reside. The publication must meet specific legal requirements, and you may need court approval before proceeding with this method.
  3. Alternative Service Methods: Depending on the jurisdiction, there may be alternative methods of service available if traditional methods fail. These could include service through email, social media, or other electronic means, but they usually require court approval.
  4. Court Proceedings: After attempting to locate your spouse and exhausting alternative service methods, you can proceed with the divorce through the court. The court may grant a default judgment if your spouse fails to respond to the divorce petition within a specified time frame after being properly served through publication or other approved methods.
  5. Divorce Process: Once the court grants a default judgment, the divorce proceedings can move forward. This may involve resolving issues such as property division, child custody, child support, and spousal support, depending on the laws of your jurisdiction.

It’s essential to consult with a family law attorney to understand the specific procedures and requirements for obtaining a divorce when the whereabouts of your spouse are unknown. The laws and procedures must be fully complied with and they can seem complicated. An attorney can provide guidance tailored to your situation so that you get the results you deserve.

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What happens to my inheritance if I get divorced?

young man and woman standing near the coffin at a funeral
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In New Jersey, the treatment of an inheritance in divorce proceedings can vary depending on several factors, including the specific circumstances of the divorce, the nature of the inheritance, and how the inheritance was handled during the marriage.

As a starting point, inheritances are considered separate property rather than marital property in a divorce. This means that if you received an inheritance either before or during your marriage, it is typically not subject to equitable distribution in the divorce proceedings and may remain yours alone. How you treated the inherited funds or property will largely dictate the outcome.

However, there are some exceptions to this general rule. For example:

  1. Commingling: If you commingled the inheritance with marital assets, such as depositing it into a joint bank account or using it to purchase marital property, it may lose its separate property status and become subject to division in the divorce.
  2. Using the inheritance for marital purposes: If you used the inheritance to benefit the marriage or your spouse, such as using it to pay household expenses or joint debts, a court may consider it when dividing marital assets.
  3. Transmutation: If you and your spouse agreed, either explicitly or implicitly, to treat the inheritance as marital property, it may be subject to division in the divorce.
  4. Equitable distribution: New Jersey follows the principle of equitable distribution in divorce, which means that marital property is divided fairly, though not necessarily equally, between the spouses. While inheritances are generally considered separate property, a court may still consider various factors, including the length of the marriage, each spouse’s financial contributions and needs, and any other relevant circumstances, when determining how to distribute marital assets. This means that while you may retain 100% of your inheritance, the martial assets could be allocated to your spouse in a higher percentage than might typically be warranted.

It’s essential to consult with a qualified family law attorney in New Jersey who can provide personalized advice based on your specific situation. They can help you understand how inheritance may be treated in your divorce and advocate for your interests during the legal process.

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What is divorce mediation?

Mediation is one method of resolving your divorce and can be a helpful alternative to traditional litigation. Divorce mediation is a process used to help couples going through a divorce or separation resolve their disputes with the assistance of a neutral third party, known as a mediator. The mediator facilitates communication between the parties and helps them negotiate agreements on various issues, such as division of assets, child custody, visitation schedules, and spousal support.

During divorce mediation, both parties have the opportunity to express their concerns and preferences in a less adversarial setting compared to traditional litigation. The mediator does not work for or represent one party, even if one party is paying the bill. The mediator is to be objective and work with both sides. Most mediators will strongly suggest that each side have their own attorneys who can provide legal advice and guidance. The mediator does not make decisions for the couple but instead guides them toward reaching mutually acceptable solutions. It is important to keep in mind that mediation is non-binding until any agreement is put in writing and signed by the parties. The goal is to reach a settlement that satisfies both parties and can be legally binding once approved by the court.

Divorce mediation can be less expensive and time-consuming than going to court, and it often fosters a more amicable and cooperative atmosphere between the parties. However, it may not be suitable for all couples, especially in cases involving domestic violence, substance abuse, or other significant power imbalances.

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