For those who were previously married, or who have children or significant assets, Pre-Marital or Ante-Nuptial agreements define the rights, terms and conditions that the spouses can expect. This protects prior children, while fairly and openly discussing the reasonable expectations of the martial partners.
For those who wish to address powers in the event of disability, but who can not or do not intend to marry or enter into a domestic partnership, there are Powers of Attorney and Living Together Agreements.
For those who are homosexual and can not enter into traditional marriage, New Jersey provides civil unions in the form of Domestic Partnerships. Domestic Partnerships also apply to heterosexuals over aged 62 who wish to protect assets, income and benefits that would be affected by marriage.
Contractual Powers: Power of Attorney, Broad, Durable, Health Care, or in the Event of Disability
What would happened if your were seriously injured and unable to handle your own affairs?
Unless you created a power of attorney, someone would have to petition the court to be appointed to protect your interests. This would cost thousands of dollars in counsel fees and costs.
However, a power of attorney can be created that designates your attorney in fact without the necessity of going to court.
In conjunction with a Will and review of the overall estate, you should also consider what would happen if you survive, but are seriously incapacitated. In that event, your Will does not control as the provisions of your Will only take effect after your death.
Single or married persons, partners that are not married nor in a Domestic Partnership, or other persons who do not qualify, but who desire to entrust a specific person with rights in the event of disability or incapacity, can create those rights through various forms of a Power of Attorney.
The financial and health issues can be addressed through the use of a Durable Power of Attorney. For financial and business purposes, this could include a general durable power that is effective upon signing or only becomes effective upon disability as defined by statute.
For health issues, such as determining if you should be artificially kept alive, a health care designee or a Living Will would be appropriate. Various options are available so that you can simply empower another person to decide, or you can state the conditions under which you do not want to be kept alive. This allows you to consider the "guilt" impact, that your designee would have to deal with if he or she had to decide to turn off the machines. After discussion of those consequences and deciding upon the path that is right for your family, you should also discuss your wishes with your family so that everyone can support the decisions of your designee.
Covenant Marriages
Covenant Marriage Limits Grounds for Divorce in a Pre-Marital Agreement to make divorce more difficult to obtain and protect each party in second marriages where there are children or significant assets.
You can not agree to deprive a party to an agreement of a right. However, they can agree to a method of distribution that bases financial distribution upon conduct and time.
For many people this raises the stakes before giving up on the marriage. It could for example, provide that adultery by a party grants the offended party the most generous distribution method. If divorce is sought on other grounds, such as "Irreconcilable differences, or mental cruelty", then the party seeking the divorce may receive the least favorable distribution method.
The agreement can recite the principle and beliefs that they each hold important and explain why this agreement serves their beliefs. These can also be understood and summarized into Covenants or promises that may be included in the marriage vows exchanged at the marriage ceremony.
By negotiation of the terms of the covenants prior to marriage, Each party has a clear understanding of the arrangement. To assure the enforceability of the agreement, it is reduced to a written document, and the execution of the document is video recorded.
Video Recording of the Formal Execution of Documents to Assure The Covenants Will Be Enforced Typically we would video the pre-execution of documents which would include a discussion about the present date and time, location, identities of the parties and a general discussion of the purpose of the meeting.
The purpose of the video tape is to assure that questions or challenges to terms and conditions of the Covenant Marriage Agreement based upon undue influence, knowing and voluntariness, understanding the consequences of the acts taken, being of a clear mind and capable of expressing themselves in a clear way, will have little success based upon evidential value of the declarations made while executing the document.
Secure On Line Access to Signed Documents and Video Files We store the video and pdf copies of the documents on our server. We would also store any video of the marriage vows. These data files remain available to both parties (read only), through a secure on line web interface.
In the event that the parties desire to make a change to the agreement, we scan and copy both parties, and the document will appear in the the party's on line folder.
Pre-Marital Agreements
Pre-Marital Agreements help to protect each party in second marriages where there are children or significant assets.
A Pre-marital, or pre-nuptial, or ante-nuptial agreement, is a well known way of protecting substantial family assets prior to marriage, as well as a method to legally protect your children of a prior marriage without losing your commitment to your new partner
There is no such thing as a Soul Mate Pre-Marital agreements are often demonized by Hollywood as the antithesis of true love. Hollywood continues the distortion of what love is with the perpetuation in mass media of the false concept of a soul mate as the romantic idealization of love that every young man or woman should aspire to.
The motivation in perpetuating this myth is obviously and simply nothing more than the pursuit of money. However, the effect that the mass media has on the culture to define and affect the current values and trends of the society is universally recognized.
Consequently, the virtue of selfless pursuit of a union with your soul mate is contrasted against any person who seeks to promote their own self-interest through a desire to execute a pre-marital agreement. The inference being anyone seeking to have any form of ante-nuptial agreement must be heartless, cold, and not really in love.
Successful Relationships allow Partners to Address Their Own Needs
However, while it is true that one can love another no better than one can love oneself, they are not mutually exclusive.
People in a mature intimate relationship understand that being able to take care of your own needs and concerns is a critical part of keeping the relationship alive and healthy.
This exercise is not really needed for anyone who is divorced, no matter how amicable the break-up. However, for those who are not divorced, here is a simple example to understand the importance of pre-marital agreements in second marriages:
Say you are a 45 year old man and you have children from a prior marriage and normal assets, a house, some retirement and saving and some life insurance. You meet a lovely woman, marry her, and you die shortly after your new marriage as a result of a freak accident. What would happen to your assets?
Probably the assets will go to her by will or intestate succession. Since you just got married, you may assume that because she loves you so much and is of such a high moral character that she will in some unknown and undefined way take care of your children, by whatever that means to her at that time. Imagine looking into your children's eyes after your death when they find out their new step-mom gets it all. Are you completely comfortable with this?
Now, consider this: After your death your children live with their natural mother, and your widow, having no legal standing to exercise your parenting rights, has no contact with them. She gets re-married and dies within a couple of years. Now the assets that went to your wife, on her death two years later are passed onto her new husband. You could not know who that person is, and your children are not even related to his deceased wife, or to him. In fact, her new husband may have never met your children. Do you think that the widow of your widowed spouse would be fair with your children and the assets that passed to him from you?
This plays out the same even if divorce, rather than your death was the cause of the initial distribution of your assets. The difference is you are still alive to feel bad about how your children will only get a quarter of what they would have gotten if you had protected them with a pre-marital agreement.
Same situation, but you end up in a coma after the freak accident and die a couple years later. Your kids move in with their mother and no longer see your new wife. Whether your assets were consumed by medical bills, or passed to your wife after your death, how have you provided for your children?
Why People Object to Pre-Marital Agreements
There are only two reasons why people object to pre-marital agreements:
- Feeling Unloved -
- The Equity of the Deal -
The issue is typically when one party is divorced and the other party has never been been married or is widowed. In those situations the other party does not share the paradigm of having committed to a marriage and the marriage failed despite your best efforts and initial belief that she was your soul mate and this marriage will last forever.
The Lawyer Mediator an an independent professional presents the Pre-Marital Agreement as a way to promote and discuss the interests and concerns of both parties.
Using the mediation methodology, we can approach the subject of a pre-marital agreement in a way that is not offensive to the resisting party. By allowing the lawyer-mediator to be an independent professional from whom you seek advice, you eliminate yourself as the focus of one seeking to control for the purpose of self-gain.
Living Together Agreements for those who can not enter into marriage or domestic partnerships
Living Together Agreements for those who can not enter into marriage or domestic partnerships.
Domestic Partnership Agreements
The preparation of a Domestic Partnership Agreement is a critical part of protecting each party in the partnership. Since these partnerships apply to both homosexual couples who seek the benefits of civil marriage, and to heterosexual couples over age 62 who seek to protect their assets and benefits, the content of such agreements must conform to the goals and purposes of the partnership.
The New Jersey "Domestic Partnership Act"
26:8A-1. Short title. ["Domestic Partnership Act."] This act shall be known and may be cited as the "Domestic Partnership Act."
26:8A-2. Findings, declarations relative to domestic partners. The Legislature finds and declares that:
a. There are a significant number of individuals in this State who choose to live together in important personal, emotional and economic committed relationships with another individual;
b. These familial relationships, which are known as domestic partnerships, assist the State by their establishment of a private network of support for the financial, physical and emotional health of their participants;
c. Because of the material and other support that these familial relationships provide to their participants, the Legislature believes that these mutually supportive relationships should be formally recognized by statute, and that certain rights and benefits should be made available to individuals participating in them, including: statutory protection against various forms of discrimination against domestic partners; certain visitation and decision-making rights in a health care setting; and certain tax-related benefits; and, in some cases, health and pension benefits that are provided in the same manner as for spouses;
d. All persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples under the laws of New Jersey, including: statutory protection through the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.) against various forms of discrimination based on domestic partnership status, such as employment, housing and credit discrimination; visitation rights for a hospitalized domestic partner and the right to make medical or legal decisions for an incapacitated partner; and an additional exemption from the personal income tax and the transfer inheritance tax on the same basis as a spouse. The need for all persons who are in domestic partnerships, regardless of their sex, to have access to these rights and benefits is paramount in view of their essential relationship to any reasonable conception of basic human dignity and autonomy, and the extent to which they will play an integral role in enabling these persons to enjoy their familial relationships as domestic partners and to cope with adversity when a medical emergency arises that affects a domestic partnership, as was painfully but graphically illustrated on a large scale in the aftermath of the tragic events that befell the people of our State and region on September 11, 2001;
e. The Legislature, however, discerns a clear and rational basis for making certain health and pension benefits available to dependent domestic partners only in the case of domestic partnerships in which both persons are of the same sex and are therefore unable to enter into a marriage with each other that is recognized by New Jersey law, unlike persons of the opposite sex who are in a domestic partnership but have the right to enter into a marriage that is recognized by State law and thereby have access to these health and pension benefits; and
f. Therefore, it is the public policy of this State to hereby establish and define the rights and responsibilities of domestic partners.
26:8A-3. Definitions relative to domestic partners. As used in sections 1 through 9 of P.L.2003, c.246 (C.26:8A-1 through C.26:8A-9) and in R.S.26:8-1 et seq.:
"Affidavit of Domestic Partnership" means an affidavit that sets forth each party's name and age, the parties' common mailing address, and a statement that, at the time the affidavit is signed, both parties meet the requirements of this act for entering into a domestic partnership and wish to enter into a domestic partnership with each other.
"Basic living expenses" means the cost of basic food and shelter, and any other cost, including, but not limited to, the cost of health care, if some or all of the cost is paid as a benefit because a person is another person's domestic partner.
"Certificate of Domestic Partnership" means a certificate that includes: the full names of the domestic partners, a statement that the two individuals are members of a registered domestic partnership recognized by the State of New Jersey, the date that the domestic partnership was entered into, and a statement that the partners are entitled to all the rights, privileges and responsibilities accorded to domestic partners under the law. The certificate shall bear the seal of the State of New Jersey.
"Commissioner" means the Commissioner of Health and Senior Services.
"Domestic partner" or "partner" means a person who is in a relationship that satisfies the definition of a domestic partnership as set forth in this act.
"Have a common residence" means that two persons share the same place to live in this State, or share the same place to live in another jurisdiction when at least one of the persons is a member of a State-administered retirement system, regardless of whether or not: the legal right to possess the place is in both of their names; one or both persons have additional places to live; or one person temporarily leaves the shared place of residence to reside elsewhere, on either a short-term or long-term basis, for reasons that include, but are not limited to, medical care, incarceration, education, a sabbatical or employment, but intends to return to the shared place of residence.
"Jointly responsible" means that each domestic partner agrees to provide for the other partner's basic living expenses if the other partner is unable to provide for himself.
"Notice of Rights and Obligations of Domestic Partners" means a form that advises domestic partners, or persons seeking to become domestic partners, of the procedural requirements for establishing, maintaining, and terminating a domestic partnership, and includes information about the rights and responsibilities of the partners.
26:8A-4. Affidavit of Domestic Partnership; establishment, requirements. a. Two persons who desire to become domestic partners and meet the requirements of subsection b. of this section may execute and file an Affidavit of Domestic Partnership with the local registrar upon payment of a fee, in an amount to be determined by the commissioner, which shall be deposited in the General Fund. Each person shall receive a copy of the affidavit marked "filed."
b. A domestic partnership shall be established when all of the following requirements are met:
(1) Both persons have a common residence and are otherwise jointly responsible for each other's common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:
(a) a joint deed, mortgage agreement or lease;
(b) a joint bank account;
(c) designation of one of the persons as a primary beneficiary in the other person's will;
(d) designation of one of the persons as a primary beneficiary in the other person's life insurance policy or retirement plan; or
(e) joint ownership of a motor vehicle;
(2) Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;
(3) Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;
(4) Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;
(5) Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements set forth in this section;
(6) Both persons have chosen to share each other's lives in a committed relationship of mutual caring;
(7) Both persons are at least 18 years of age;
(8) Both persons file jointly an Affidavit of Domestic Partnership; and
(9) Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions of section 10 of P.L.2003, c.246 (C.26:8A-10).
c. A person who executes an Affidavit of Domestic Partnership in violation of the provisions of subsection b. of this section shall be liable to a civil penalty in an amount not to exceed $1,000. The penalty shall be sued for and collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
26:8A-5. Notice of termination of domestic partnerships to third parties; requirements. a. A former domestic partner who has given a copy of the Certificate of Domestic Partnership to any third party to qualify for any benefit or right and whose receipt of that benefit or enjoyment of that right has not otherwise terminated, shall, upon termination of the domestic partnership, give or send to the third party, at the last known address of the third party, written notification that the domestic partnership has been terminated. A third party that suffers a loss as a result of failure by a domestic partner to provide this notice shall be entitled to seek recovery from the partner who was obligated to send the notice for any actual loss resulting thereby.
b. Failure to provide notice to a third party, as required pursuant to this section, shall not delay or prevent the termination of the domestic partnership.
26:8A-6. Obligations of domestic partners. a. The obligations that two people have to each other as a result of creating a domestic partnership shall be limited to the provisions of this act, and those provisions shall not diminish any right granted under any other provision of law.
b. Upon the termination of a domestic partnership, the domestic partners, from that time forward, shall incur none of the obligations to each other as domestic partners that are created by this or any other act.
c. A domestic partnership, civil union or reciprocal beneficiary relationship entered into outside of this State, which is valid under the laws of the jurisdiction under which the partnership was created, shall be valid in this State.
d. Any health care or social services provider, employer, operator of a place of public accommodation, property owner or administrator, or other individual or entity may treat a person as a member of a domestic partnership, notwithstanding the absence of an Affidavit of Domestic Partnership filed pursuant to this act.
e. Domestic partners may modify the rights and obligations to each other that are granted by this act in any valid contract between themselves, except for the requirements for a domestic partnership as set forth in section 4 of P.L.2003, c.246 (C.26:8A-4).
f. Two adults who have not filed an Affidavit of Domestic Partnership shall be treated as domestic partners in an emergency medical situation for the purposes of allowing one adult to accompany the other adult who is ill or injured while the latter is being transported to a hospital, or to visit the other adult who is a hospital patient, on the same basis as a member of the latter's immediate family, if both persons, or one of the persons in the event that the other person is legally or medically incapacitated, advise the emergency care provider that the two persons have met the other requirements for establishing a domestic partnership as set forth in section 4 of P.L.2003, c.246 (C.26:8A-4); however, the provisions of this section shall not be construed to permit the two adults to be treated as domestic partners for any other purpose as provided in P.L.2003, c.246 (C.26:8A-1 et al.) prior to their having filed an Affidavit of Domestic Partnership.
g. A domestic partner shall not be liable for the debts of the other partner contracted before establishment of the domestic partnership, or contracted by the other partner in his own name during the domestic partnership. The partner who contracts for the debt in his own name shall be liable to be sued separately in his own name, and any property belonging to that partner shall be liable to satisfy that debt in the same manner as if the partner had not entered into a domestic partnership.
26:8A-7. Preparation of forms and notices. a. The commissioner shall cause to be prepared, in such a manner as the commissioner determines appropriate:
(1) blank forms, in quadruplicate, of Affidavits of Domestic Partnership and Certificates of Domestic Partnership corresponding to the requirements of this act; and
(2) copies of the Notice of the Rights and Obligations of Domestic Partners.
b. The commissioner shall ensure that these forms and notices, along with such sections of the laws concerning domestic partnership and explanations thereof as the commissioner may deem useful to persons having duties to recognize domestic partners under those laws, are printed and supplied to each local registrar, and made available to the public upon request.
26:8A-8. Duties of local registrar. a. The local registrar shall:
(1) stamp each completed Affidavit of Domestic Partnership received with the date of its receipt and the name of the registration district in which it is filed; and
(2) immediately provide two copies of the stamped Affidavit of Domestic Partnership to the person who files that document.
b. Upon the filing of an Affidavit of Domestic Partnership and payment of the appropriate filing fee, the local registrar shall immediately complete a Certificate of Domestic Partnership with the domestic partners' relevant information and the date that the domestic partnership was established. The local registrar shall then issue to the domestic partners two copies of the certificate and two copies of the Notice of the Rights and Obligations of Domestic Partners. Copies of the Certificate of Domestic Partnership shall be prepared and recorded in the local registrar's records and with the State registrar.
c. Each local registrar shall, on or before the 10th day of each calendar month, or sooner if requested by the Department of Health and Senior Services, transmit to the State registrar the original of all the Affidavits of Domestic Partnership and Certificates of Domestic Partnership received or prepared by the local registrar for the preceding month.
26:8A-9. Duties of State registrar. The State registrar shall cause all Affidavits of Domestic Partnership and Certificates of Domestic Partnership received to be alphabetically indexed by the surname of one of the partners, and shall establish a cross-referencing system to allow the records to be identified by the surname of the second partner. The State registrar shall also cause to be transcribed or otherwise recorded from the certificates any of the vital facts appearing thereon as the commissioner may deem necessary or useful.
26:8A-4. Affidavit of Domestic Partnership; establishment, requirements. a. Two persons who desire to become domestic partners and meet the requirements of subsection b. of this section may execute and file an Affidavit of Domestic Partnership with the local registrar upon payment of a fee, in an amount to be determined by the commissioner, which shall be deposited in the General Fund. Each person shall receive a copy of the affidavit marked "filed."
b. A domestic partnership shall be established when all of the following requirements are met:
(1) Both persons have a common residence and are otherwise jointly responsible for each other's common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:
(a) a joint deed, mortgage agreement or lease;
(b) a joint bank account;
(c) designation of one of the persons as a primary beneficiary in the other person's will;
(d) designation of one of the persons as a primary beneficiary in the other person's life insurance policy or retirement plan; or
(e) joint ownership of a motor vehicle;
(2) Both persons agree to be jointly responsible for each other's basic living expenses during the domestic partnership;
(3) Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;
(4) Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;
(5) Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements set forth in this section;
(6) Both persons have chosen to share each other's lives in a committed relationship of mutual caring;
(7) Both persons are at least 18 years of age;
(8) Both persons file jointly an Affidavit of Domestic Partnership; and
(9) Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to the filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions of section 10 of P.L.2003, c.246 (C.26:8A-10).
c. A person who executes an Affidavit of Domestic Partnership in violation of the provisions of subsection b. of this section shall be liable to a civil penalty in an amount not to exceed $1,000. The penalty shall be sued for and collected pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
26:8A-11. Applicability of act. a. The provisions of sections 41 through 56, inclusive, of P.L.2003, c. 246 shall only apply in the case of two persons who are of the same sex and have established a domestic partnership pursuant to section 4 of P.L.2003, c.246 (C.26:8A-4).
b. Notwithstanding any other provisions of law to the contrary, the provisions of subsection a. of this section shall not be deemed to be an unlawful discrimination under the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.).
26:8A-12. Rules, regulations; responsible agencies. a. The Commissioner of Health and Senior Services, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of sections 1 through 10 and 13 through 35 of this act.
b. The Commissioner of Banking and Insurance, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of sections 47 through 52, 55 and 56 of this act.
c. The New Jersey Individual Health Coverage Program Board, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of section 53 of this act.
d. The New Jersey Small Employer Health Benefits Program Board, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to effectuate the purposes of section 54 of this act.
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