In a proposed bill ( http://www.njleg.state.nj.us/2012/Bills/S2500/2151_I1.HTM) that is being sponsored in the NJ Senate by Senator Scutari and which has recently been endorsed by the Assembly Judiciary committee, the viability of previously entered into premarital or prenuptial agreements is at risk. This bill follows the Senator’s attack on palimony which has harmed untold numbers of NJ citizens, primarily women. Now, this bill attempts to rewrite the standards that will govern whether or not a premarital agreement will be enforced. The changed standard is disguised behind a noble intention. As the introduction to the bill reads: “This bill would strengthen the enforceability of premarital and pre-civil union agreements.” The true interpretation: we want to make it harder for women to get out from under a bad prenup regardless of how many years ago they entered into the agreement. A with the growing call for alimony “reform” in NJ, altruistic titles can mask the true intentions of legislation.
Presently, a premarital agreement may be set aside upon proof that the agreement was unconscionable at the time enforcement was sought; or proof that the party seeking to set aside the agreement: (1) was not provided full and fair disclosure of the earnings, property and 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; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. This standard has worked well for years.
Now, the proposed bill attempts to shift the relevant time period for determining whether the agreement is unconscionable to the date the agreement was executed. How can lawyers and judges be called upon to go back into the past and discern the intentions and thoughts of the parties? Can all of the necessary documents be recovered? Can the facts be satisfactorily establised and relied upon without being tainted by revisionist history? Doubtful.
The legislative attacks on divorcing women in NJ must stop. Legislation such as this does not promote the commin welfare; it advances the goals of few at the expense of others.
