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tazzygirl -> RE: Prenups (9/26/2011 12:51:05 AM)
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~FR
I see prenups as a protection of sorts... like insurance.
Great to have, both parties are protected.
One party can protect assets at a future date, depending on how its written.
With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April, 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife's waiver of her interest in the husband's savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.
A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Premarital Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for. Note that states have different versions of the UPAA.
Choice of law provisions are critical in prenups. Parties to the agreement can elect to have the law of the state they are married in govern both the interpretation of the agreement and how property is divided at the time of divorce. In the absence of a choice of law clause it is the law of the place the parties divorce, not the law of the state they were married that decides property and support issues.
In drafting an agreement, it is important to recognize that there are two types of state laws that govern divorce – equitable distribution, of which there are 41 states and 9 states that are some variation of community property. An agreement written in a community property state may not be designed to govern what occurs in an equitable distribution state and vice versa. It may be necessary to retain attorneys in both states to cover the possible eventuality that the parties may live in a state other than the state they were married. Often people have more than one home in different states or they move a lot because of their work so it is important to take that into account in the drafting process.
There are several ways that a prenuptial agreement can be attacked in court. These include lack of voluntariness, unconscionability, and a failure to disclose assets.[7]
This type of law fascinates me.
quote:
In NJ, a spouse can NOT be disinherited, not by will or pre-nup. They will get 1/3 of the estate. A pre-nup will not supercede a will and in most cases, the most recent legal document is the one that takes precedence, not the first written. If that were the case, people would never be able to change their wills.
3. What is the elective share?
If a spouse dies, then the surviving spouse may elect to take a one-third share of their estate. This is called an elective share. Basically, a spouse can't be disinherited. The surviving spouse has a right to an elective share of the deceased's estate. The only way that a surviving spouse can be completely disinherited is if the parties execute a prenuptial agreement. In a prenuptial agreement both spouses can agree to waive any claims to an elective share of each other's respective estates.
Your Elective Estate not only includes property in your name alone, but it also includes most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly held property, annuities, certain interests in trusts, the cash value of life insurance, and even property that you might transfer to a child during the one-year period preceding your death. In other words, you cannot easily ignore your spouse's rights to his or her elective share of your estate. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding, and then force the child to return the assets to satisfy the elective share obligation.
http://www.divorcesource.com/NJ/ARTICLES/sliwinski62.html
The elective share is New Jersey law. So it seems the 1/3 isnt iron clad
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