SENATE JUDICIARY COMMITTEE

STATEMENT TO

SENATE, No. 2151

STATE OF NEW JERSEY

DATED: JULY 26, 2012

      The Senate Judiciary Committee reports favorably Senate Bill No. 2151.

      This bill would strengthen the enforceability of premarital and pre-civil union agreements.

      Currently, pursuant to subsection b. of R.S.37:2-38, such agreements may be set aside by a court if deemed, at the time of enforcement, to be “unconscionable.”  That term is defined in R.S.37:2-32 as an agreement, either due to a lack of property or unemployability, which would: render a spouse or partner in a civil union couple without a means of reasonable support; make a spouse or partner in a civil union couple a public charge; or provide a standard of living far below that which was enjoyed before the marriage or civil union.

      The bill eliminates this statutory definition as well as the determination of unconscionability on the basis of when enforcement of the agreement was sought.  It instead provides that a premarital or pre-civil union agreement could not be deemed unconscionable unless the agreement was unconscionable when executed because 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.

      The above four factors exist under the current law, in subsection c. of R.S.37:2-38, as separate indicators, not tied to unconscionability, for setting aside a premarital or pre-civil union agreement, but pursuant to the bill’s provisions would now be considered as the factors that determine whether or not an agreement is deemed unconscionable.

      The bill would take effect immediately and apply to all premarital and pre-civil union agreements which have not been the subject of an enforcement proceeding filed with a court as of the effective date.