NJSBA Family Law Section

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  • 1.  NJ prenup in PA - controlling law

    Posted 07-13-2017 06:35 PM
    Hello,

    Parties executed prenuptial agreement in New Jersey and moved to Pennsylvania. For various reasons, I want to argue that the agreement is not enforceable. There is a clause in the agreement that "the laws of NJ shall govern the enforcement regardless of any jurisdiction wherein it may be presented as evidence." 

    Is the court in Pennsylvania really going to decide the enforceability of this agreement using the New Jersey law, especially that NJ has NJ UPAA? I think it will make a big difference as to which state law will be controlling, because it appears that it may be easier to prove that the agreement is not enforceable under the NJ law.

    Also am I correct that prenuptial agreements drafted prior to 2013 are to be evaluated using now existing law, and not the law existing as of the date of the signing? 

    Thoughts, comments? Any suggestions from the NJ-PA practitioners? 

    Thank you very much

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    Natalia Teper Esq.
    Pennington NJ
    (609)737-3030
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  • 2.  RE: NJ prenup in PA - controlling law

    Posted 07-17-2017 07:50 PM
    PA will likely enforce the prenup since there is very low threshold, if any, for not enforcing it.  It will also depend upon the county in which the prenup would be presented.  In PA, each county has it's own court rules, own filing fees, and own "home rules".  That being said, if you are going to argue that the prenup is unenforceable, I would recommend arguing that issue in NJ.  Good luck.


    Of Counsel to Rotolo Karch Law  

    ROSALYN METZGER LLC
    Attorney/Mediator, PA Private Practice  
    908-310-0356  |      [email protected]


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  • 3.  RE: NJ prenup in PA - controlling law

    Posted 07-18-2017 01:38 PM

    Kind of a "harsh" view of PA. They did exit the 19th century in 1980 with the passage of no-fault divorce. While there are county supplementary rules they must follow the state rules. They cannot modify or negate  the state rules...which there are. The county supplementary rules are published. Yes there are "home" practices, not rules. But then I've found NJ counties which seem to have a slightly different set of procedures then others in the state. 

    That said, conflict of laws;   PA will   enforce the contractual arrangement of the parties and apply NJ laws if that's what they agreed to in the contract. Yes, they are capable of reading and applying another state's laws. I've testified in other states regarding PA law, Virginia for one, when the issue arose. 

    If it's a valid prenup in NJ, odds are it will be upheld. 

    ccs

      




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  • 4.  RE: NJ prenup in PA - controlling law

    Posted 07-18-2017 02:43 PM
    The plot thickens. There will be a hearing in PA, and apparently the NJ attorney who drafted the prenup is going to testify about it. I guess the fear of malpractice (should I succeed in invalidating this prenup) overpowers the issue of privilege?

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    Natalia Teper Esq.
    Pennington NJ
    (609)737-3030
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    Original Message


  • 5.  RE: NJ prenup in PA - controlling law

    Posted 07-19-2017 10:44 AM
    ​

    I'm curious as to what issue you are arguing makes the pre-nup invalid. Your client could get punished by way of counsel fees for trying to open up the contract if it isn't a solid case and the court finds your petition frivolous and the other side incurred expense to defend.  We had a case in Bucks County with the challenging party ordered to pay upwards of $95,000 in counsel fees and expenses but that was multi-day hearing.  Additionally, most well-written pre-nups have enforcement clauses.

     Any local rules will be procedural but, local doctrine can have a profound effect on the outcome of equitable distribution and divorce (i.e. vanishing credit on pre-marital assets, or ratio for duration of alimony, etc.). I would consult with a local attorney to get a general idea of the local doctrine as it applies to this case.

    Agreed that the PA court will use current NJ law unless specified otherwise in the pre-nup.



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    Brian Coverdale Esq.
    Partner - Zlock & Coverdale, P.C.
    Doylestown PA
    (215)968-1800
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    Original Message