New Jersey’s Uniform Premarital Agreement Act: How It Protects Your Interests

New Jersey couples who want a prenuptial agreement work under a specific statute. New Jersey enacted its version of the Uniform Premarital Agreement Act in 1988, extended it to civil unions in 2006, and amended it in 2013 to strengthen the enforceability of prenups. This guide covers the requirements, how an agreement can be challenged, and exactly what the 2013 amendment changed. New York’s rules are different; see our guide to prenuptial agreements in New York.

What does New Jersey’s premarital agreement law cover?

The Act, now titled the Uniform Premarital and Pre-Civil Union Agreement Act (N.J.S.A. 37:2-31 to 37:2-41), governs a premarital agreement: an agreement between prospective spouses “made in contemplation of marriage” and “to be effective upon marriage” (N.J.S.A. 37:2-32). “Property” is defined broadly and includes present and future interests, “including income and earnings.” Courts are directed to construe the Act consistently with the law of other states that enacted the uniform act (N.J.S.A. 37:2-40).

Because the definition covers agreements made before the wedding, an agreement signed after the marriage (a postnuptial agreement) is not a premarital agreement under the Act. If you are already married, ask a lawyer which rules apply to an agreement made during the marriage.

Requirements for a valid New Jersey prenup

Writing, signatures and a statement of assets

A New Jersey prenup “shall be in writing, with a statement of assets annexed thereto, signed by both parties,” and it is enforceable without consideration (N.J.S.A. 37:2-33). It becomes effective when the parties marry (N.J.S.A. 37:2-36). After the wedding, it can be amended or revoked only by a written agreement signed by both parties, again without consideration (N.J.S.A. 37:2-37).

The statement of assets is easy to treat as a formality. It should be a real schedule of each party’s assets, debts and income, not a line saying each party has “various assets.”

Is notarization required?

New Jersey’s statute does not require notarization. We still recommend having each signature acknowledged before a notary. It documents who signed and when, and New York makes an acknowledgment a condition of enforcing a marital agreement in a New York divorce (Domestic Relations Law § 236(B)(3)). If you might ever live in New York, an acknowledgment that meets New York’s requirements avoids a later argument about which state’s rule applies.

Financial disclosure

Disclosure is central to New Jersey’s statute. Among the circumstances that can make an agreement unconscionable, the statute lists that, before signing, the challenging party:

• “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 beyond the disclosure provided;
• did not have, or reasonably could not have had, adequate knowledge of the other party’s property or financial obligations (N.J.S.A. 37:2-38(c)(1)–(3)).

The statute asks whether disclosure was full and fair. It does not require the challenger to prove that the other party deliberately hid anything. We recommend a complete statement of assets, debts and income, exchanged early, annexed to the agreement, and acknowledged in writing as received. A written waiver of further disclosure is possible, but it must be voluntary and express, and relying on a waiver instead of disclosure adds risk.

Independent counsel or a written waiver

New Jersey’s statute addresses lawyers directly. An agreement can also be found unconscionable if the challenging party “did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel” (N.J.S.A. 37:2-38(c)(4)). Each party should have their own lawyer. If someone declines, the waiver should be in writing, voluntary and express, and signed before the agreement is executed.

How can a New Jersey prenup be challenged?

The burden is on the person who wants to set the agreement aside, and the standard is high: clear and convincing evidence (N.J.S.A. 37:2-38). There are two routes:

1. Involuntary signing. The party executed the agreement involuntarily (N.J.S.A. 37:2-38(a)).
2. Unconscionability at signing. The agreement “was unconscionable when it was executed” because of the disclosure, knowledge or counsel circumstances described above (N.J.S.A. 37:2-38(c)).

Unconscionability is decided by the judge as a matter of law, and an agreement “shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable” (N.J.S.A. 37:2-38(d)).

Signing close to the wedding

The Act sets no deadline before the wedding and does not define “involuntarily,” so there is no fixed rule about how close is too close. But an agreement first presented days before the ceremony, with deposits paid and guests invited, gives a challenger facts to argue. Finalize the agreement well before the wedding and keep a record of when drafts and disclosure were exchanged.

What changed in 2013?

P.L. 2013, c. 72, approved June 27, 2013, amended N.J.S.A. 37:2-32 and 37:2-38 in three ways:

• It deleted the ground that an agreement “was unconscionable at the time enforcement was sought” (former N.J.S.A. 37:2-38(b)).
• It deleted the statutory definition of an unconscionable agreement (former N.J.S.A. 37:2-32(c)): one that, due to lack of property or unemployability, would leave a spouse without a means of reasonable support, make a spouse a public charge, or provide a standard of living far below the one enjoyed before the marriage.
• It tied unconscionability to the time of signing. The disclosure, knowledge and counsel circumstances, which had been separate grounds, became the ways to show that an agreement “was unconscionable when it was executed,” and a new sentence bars a finding of unconscionability unless those circumstances apply.

The challenger’s burden, the clear-and-convincing standard, and the rule that the judge decides unconscionability were already in the statute. The amendment applies to agreements entered into on or after June 27, 2013, and to earlier agreements the parties voluntarily revised afterward under N.J.S.A. 37:2-37. An agreement signed before that date and never revised is judged under the prior version, which still allows a challenge based on unconscionability at the time enforcement is sought.

What can a New Jersey prenup cover?

Under N.J.S.A. 37:2-34, the parties may contract about:

• each party’s rights in the property of either or both of them, whenever and wherever acquired;
• the right to buy, sell, use, transfer, mortgage or otherwise manage and control property;
• the disposition of property on separation, divorce, death or another event;
• the modification or elimination of spousal support (alimony);
• wills, trusts or other arrangements to carry out the agreement;
• ownership of and rights to life insurance death benefits;
• the law that governs interpretation of the agreement; and
• “any other matter, including their personal rights and obligations, not in violation of public policy.”

That last category gives couples room to address non-financial matters, but a term must still be consistent with public policy, and promises about personal conduct can be hard to prove and enforce. Keep such terms separate from the financial provisions, define key terms carefully, and include a severability clause to improve the chance that the rest of the agreement survives if one term fails; see why severability clauses matter.

Child support and custody

A prenup “shall not adversely affect the right of a child to support” (N.J.S.A. 37:2-35). Custody is decided by the court: New Jersey law directs the court to order a custody arrangement both parents agree to “unless it is contrary to the best interests of the child” (N.J.S.A. 9:2-4(d)). Terms in a prenup about future children therefore do not bind the court.

Practical steps for a New Jersey prenup

• Start early and sign well before the wedding.
• Prepare a detailed statement of assets, debts and income, and annex it to the agreement.
• Have the other party confirm in writing that they received the disclosure.
• Each party should have independent counsel; any waiver of counsel should be in writing.
• Have each signature acknowledged before a notary.
• Keep copies of drafts, disclosure and correspondence.
• Change the agreement only by a written agreement signed by both spouses (N.J.S.A. 37:2-37). If your agreement predates June 27, 2013, ask a lawyer whether a revision makes sense, because a voluntary revision brings it under the current statute.

What does a prenup cost?

We prepare prenuptial agreements for a fixed fee: Standard $2,500; Complex $4,000; High-Net-Worth $6,000+. Joel Yacoob is admitted in New Jersey and New York and personally handles every matter. See our prenuptial agreement page for details.

Frequently Asked Questions

Is a prenuptial agreement enforceable in New Jersey?

Yes. A New Jersey prenup that is in writing, has a statement of assets annexed, and is signed by both parties takes effect when they marry. The person who wants to set it aside must prove, by clear and convincing evidence, that they signed involuntarily or that the agreement was unconscionable when signed because of a disclosure, knowledge or counsel problem listed in N.J.S.A. 37:2-38. The judge decides unconscionability as a matter of law.

Does a New Jersey prenup need to be notarized?

New Jersey’s statute does not require notarization. The agreement must be in writing, have a statement of assets annexed, and be signed by both parties (N.J.S.A. 37:2-33). We still recommend acknowledging each signature before a notary. It documents the signing, and New York requires an acknowledgment for marital agreements enforced in a New York divorce, which matters if you may live there.

Can a New Jersey prenup waive alimony?

Yes. The Act allows the parties to modify or eliminate spousal support (N.J.S.A. 37:2-34). For agreements signed on or after June 27, 2013, the statute no longer lists unconscionability at the time enforcement is sought as a ground for refusing enforcement. The challenger must prove, by clear and convincing evidence, involuntary signing or unconscionability at signing based on the disclosure, knowledge or counsel circumstances in N.J.S.A. 37:2-38.

What changed in New Jersey prenup law in 2013?

P.L. 2013, c. 72, approved June 27, 2013, removed the ground that an agreement was unconscionable at the time enforcement was sought and deleted the definition of unconscionability based on lack of reasonable support, becoming a public charge, or a far lower standard of living. Unconscionability is now judged as of signing, through the disclosure, knowledge and counsel circumstances. The change applies to agreements signed on or after that date and to older agreements later revised.

Can a New Jersey prenup decide child support or custody?

A prenup cannot adversely affect a child’s right to support (N.J.S.A. 37:2-35). Custody is decided by the court, which will order an arrangement the parents agree to unless it is contrary to the child’s best interests (N.J.S.A. 9:2-4). Terms about future children therefore do not bind the court. Focus the prenup on the parties’ own property, support and estate rights.

If you live in New Jersey, or may divide your life between New Jersey and New York, Joel Yacoob can explain how each state’s rules apply to your agreement. Learn more about our prenuptial agreement services, or start your intake online. If a marriage is already ending, see our guide to uncontested divorce in New Jersey.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.