Prenuptial Agreement Basics

Prenuptial Agreement
Prenuptial Agreement

Previously in this blog, we have touched upon the use of a prenuptial agreement to shelter business interests and alternative legal mechanisms to achieve the same, or similar, results (i.e. shareholder agreements and trusts). However, prenuptial agreements, or colloquially “prenups,” may be appropriate even when there is not a business interest to protect. For people entering into a second or third marriage, and who as the primary breadwinner earn significant income, they may wish to limit their exposure to lengthy, and costly, litigation over alimony. In other instances, the prenup may specifically insulate one spouse from substantial debt either brought into the marriage by the other or anticipated to be incurred by the other sometime during the marriage. In any event, parties should have a basic understanding of how a prenup functions to better understand how it may, or may not, be a worthwhile investment.

Initiating the discussion of a prenup with your fiance’ will force you to confront some potentially difficult questions. This can no doubt chill the heat of a romance. However, parties avoid this discussion to their own detriment and true love should be able to survive the reasonable concerns that a prenup is intended to address. Much of the negative reputation comes from a lack of basic knowledge regarding the intent and mechanics of the process. As with many things, knowledge is power and can allow the parties to broach the subject of a prenup as rational adults.

Obviously the purpose of a prenup is to fix and establish the rights of each spouse as to the division of property and/or support upon death or divorce. In New Jersey, the standards of such agreements and their enforcement are governed by statute (N.J.S.A. 37:2-38). To be valid, a prenuptial agreement must be in writing. As it is a contract, it must also be supported by proper consideration. That is, there must be a bargained for exchange of the terms. It must be entered into voluntarily, without coercion, and the parties must represent their competence to enter into such agreements. Importantly, the statute provides that the parties must each make a full and fair disclosure of assets, liabilities and income. Finally, it is critical that the parties consult with independent legal counsel, or else waive their right to do so in writing. Once these requirements are met, it is difficult to set aside the agreement, whether in part or in its entirety, though it is possible per the statute. (See N.J.S.A. 37:2-38 (a) – (c)).

The results of prenuptial agreements when put into effect can be far reaching. But people are marrying later in life after having already established careers and accumulated sometimes significant asset portfolios.  Since it is good planning, and with a desire to limit costs of divorce, there is no reason that prenuptial agreements should not become more commonplace – and lose some of the negative connotations that they invoke.


Social Media and Family Court

social media
social media

The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted.  I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed.  I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles.  My example of what we see is based on an actual incident that I have witnessed.  The details here are not important but the broader issues raised are very significant.

We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter.  This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination.  The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch.  She was obviously attempting to raise to the court concerns over George’s mental stability.

In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him.  Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George.  These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook.  George finally learned about this from a “friend” who advised him of the exchange.

A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it.  However, George was even more astounded when he read the final postings that contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord.  The court eventually learned of the misrepresentation.  Sally never issued an apology to George, either personally or on Facebook.

Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents.  Does George have a possible tort action against Sally?  Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him.  Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?

It is clear that use, or more accurately, misuse of a social media can have significant impact on a custody matter.  This theme will continue to be developed in future entries.

Domestic Violence and Defining Who Is A Household Member

Domestic Violence
Domestic Violence

When most people think about the issue of domestic violence, they first think in terms of acts against a wife, a husband, a boyfriend or a girlfriend.  People with a little more knowledge of this area of law will also know that it includes family members living with the perpetrator of the domestic violence.  These blood-related family members include a mother, father, sister, brother, cousin and so on.  So this second category includes relatives in a non-sexual and non-dating relationship.

Even broader, the household relationships that may be included in a domestic violence scenario also include non-blood relatives who are also not romantically involved.  So for example, the brother-in-law who lives with his wife’s family may be a victim or perpetrator of domestic violence.  You may find yourself a victim of your live-in mother-in-law’s aggression.

Even a non-relative can be a party in a domestic violence matter.  Therefore, if a friend lives with you, that situation can qualify.  The cast of “friends” living together, even when not romantically involved, can qualify.  But it gets even broader.

Case law tells us that college roommates, living together in a dorm room, may qualify as parties in a domestic violence matter.  That relationship lasts one year or less, but still satisfies the “household” requirement of domestic violence law.  But a 2011 Appellate decision further expands the definition of “household member”.  In the case S.Z. v. M.C., the appellate court afforded protection against someone who was only a temporary guest in the victim’s home and that temporary guest did not even reside in the victim’s home at the time that the alleged conduct occurred.

It is clear that the definition of who precisely is a “household member” has been greatly expanded over the course of time.  The serious implications as to the heightened behavioral caution that must be adhered to between people who even temporarily reside together cannot be ignored.

Does College Attendance Have To Be “Full-Time”?

Other than modification of previously ordered support, I have not seen any issue litigated more post-judgment (after the divorce) than emancipation of a college-age child.  The reason seems obvious – the cost of maintaining a child in college and until graduation can be daunting.  Many parents of college students have sought that the Courts adopt a bright-line rule regarding college attendance – either the student is full-time or the student is deemed emancipated.

However, a recent appellate decision has re-emphasized the soft-spot that the Courts have for children who have survived their parents’ divorce. In an unpublished decision, the Court affirmed Bergen County Judge Lisa Perez Friscia’s decision that it would be unfair to ignore the “totality of circumstances” of the child’s college attendance.  The child may not have been “full-time” each and every semester, but when including summer classes with the balance of the child’s workload, the child satisfied reasonable expectations of a college workload.

The bottom line is that litigants should not fixate on the individual pieces of the college picture that suit their personal position on emancipation.  Before jumping into a motion to have a child declared emancipated, it is important to step back and view the totality of the childs efforts over time.

Fault And The Division Of Property

Frequently, matrimonial attorneys have someone come in for a consultation and offer some variation of the following: “I had an adulterous affair.  My spouse says that because I am at fault for breaking up the marriage, [s]he will get everything. ”  While it is true that in New Jersey there are fault and no-fault grounds for obtaining a divorce, except in the most extreme instances (such as hiring a “hit-man” to kill your spouse), fault in the break-up of a marriage has little meaning in the division of assets or awards of support.  Marital property is divided in New Jersey by what is referred to as equitable distribution.   This does not necessarily mean that assets are automatically divided on a 50/50 basis.  Rather, Continue reading “Fault And The Division Of Property”

Court Award of Counsel Fees Against a Bad Faith Litigant When It Is Unlikely Payment Will Be Made

It sometimes occurs that one spouse is obligated to defend him/herself against a continuous barrage of bad faith motions from the other spouse. This may be especially the case where the bad faith party is not employed or has few assets. Defending these motions can be expensive and frustrating.
However, even if it appears unlikely that the good faith spuse will ever collect a possible counsel fee award, it is the Court’s responsibility to order a counsel fee award if that award is deserved. To do otherwise would be tantamount to enabling additional frivolous bad faith applications. At least a signal would be sent that bad conduct ultimately has a cost. Down the road, that spouse may be forced to pay for their misdeeds.