26 Dec After two divorces, is a pre-nup a good idea?

Q. My daughter is getting married to someone who was married twice before. He wants her to sign a pre-nup, and they’ve already decided they plan for her to be a stay-at-home mom when they have kids. That means her career will suffer, and if they get a divorce, it will be worse for her. What can I do to make sure she is protected? She doesn’t want to fight about it because of course she doesn’t think the marriage could ever end but he doesn’t have a good track record.
— Worried

A. Talk of a pre-nup, also called a premarital agreement, can be sticky.

But it can also be an effective and efficient way to avoid a lengthy contentious divorce.

Many many couples who are preparing to marry do not want to consider the possibility of divorce at all, which in turn makes the topic of a premarital agreement difficult to discuss, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky in Haddonfield.

“Planning a wedding can be stressful and time consuming by itself and many people view the subject of a premarital agreement as simply one more added stressor,” he said. “That does not, however, mean that a premarital agreement is not worth the time and cost involved.”

Roberto said because the terms of a premarital agreement are largely fact-specific, it is somewhat difficult to give a more direct answer to your question. For that reason, he said, your daughter should consult with an experienced family law attorney.

“Under New Jersey law, your daughter has a right to be represented by independent legal counsel for purposes of the preparation of a premarital agreement,” he said. “The New Jersey Uniform Premarital Agreement Act, N.J.S.A. 37:2-38, et seq., actually requires each party to consult with independent legal counsel or expressly waive their respective rights to consultation with independent counsel in writing prior to entering into the premarital agreement.”

Roberto said an experienced attorney will be able to discuss, in detail, the specific facts and circumstances relevant to the premarital agreement and, from there, determine the best course of action for your daughter.

“The facts and circumstances to be discussed with counsel include the extent of the individual assets, liabilities and income your daughter and her fiancé are bringing into the marriage respectively, as well as their plans for married life — including their intention for your daughter to be a stay-at home-mother,” he said.

After all of the relevant information is discussed, your daughter can work with her attorney to negotiate terms of the premarital agreement that will provide her with protection in the event of divorce, Roberto said.

Such protections may include providing for a specific distribution of property and/or spousal support upon divorce, he said.

“Specific provisions may also be negotiated addressing what would happen in the event of divorce if your daughter were to give up her career to be a stay-at-home-mother — arguably the most difficult, albeit most rewarding job of all.”

Roberto said it’s also possible that after reviewing the pertinent information, the attorney may tell your daughter that it’s not in her best interest to enter into a premarital agreement at all, Roberto said. In that event, it would still be your daughter’s decision as to whether or not she wants to pursue the premarital agreement against the advice of counsel.

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This story was originally published on Dec. 26, 2019.

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