Letters and Commentary

September 14, 2012

Proposed Change to Prenuptial Agreement Law: ‘Unquestionably Unconscionable’

To the Editor:

On Aug. 20, 2012, the New Jersey Senate approved S-2151, a bill designed to strengthen the enforcement of premarital and pre-civil union (hereinafter prenuptial) agreements. The bill allows for the enforcement of prenuptial agreements (even if these agreements become unconscionable at the time of enforcement) provided that when they were signed there was full disclosure of finances and the parties consulted with an attorney.

S-2151 makes irrelevant how the prenuptial agreement leaves the parties financially when their relationship ends. Even if one party is left completely destitute at the end of a long-term relationship, the prenuptial agreement would be enforced under this bill.

For nearly 24 years, the Uniform Premarital and Pre-Civil Union Agreement Act (hereinafter “the Act”) has been the controlling law regarding enforceability of prenuptial agreements. In addition to being a model code adopted by other states, the Act codifies well-established legal principles set forth in such seminal cases as Marschall v. Marschall, 195. N.J. Super. 16 (Ch. Div. 1984) and D’Onofrio v. D’Onofrio, 200. N.J. Super. 361 (App. Div. 1985). Under the Act, a prenuptial agreement will not be enforced if the agreement is “unconscionable at the time enforcement” is sought.

While the proponents of S-2151 state that they wish to strengthen enforcement of prenuptial agreements, under the current law parties who seek to set aside such agreements on grounds of unconscionablility already have a difficult task. Indeed, a prenuptial agreement will not be deemed “unconscionable” unless enforcement would either: 1) render a spouse or partner in a civil union without a means of reasonable support; 2) make a spouse or partner in a civil union a public charge; or 3) provide a standard of living far below that which was enjoyed before the marriage or civil union.

The proponents of S-2151 say that “a deal is a deal” and that contracts entered into with the assistance of counsel should be enforced. However, prenuptial agreements are not the equivalent of contracts entered into by sophisticated business partners. Parties entering a marriage or civil union do not enter into prenuptial agreements at arm’s length (notwithstanding their representation by counsel), as they are in love and do not envision that their relationship may end. Two young professionals who come into a relationship with relatively equal incomes may not foresee that 20 years later, (due to child rearing, disability or a host of other reasons), enforcement of their prenuptial agreement will leave one party in a position exponentially worse than was ever contemplated by either party. For this reason, while upholding the public policy favoring enforcement of prenuptial agreements, our courts have always retained the power to invalidate those agreements that become unconscionable at the time of enforcement.

What appears to be lost in the consideration of this new bill is that the Family Court is a court of equity and, as such, is established to prevent manifest injustice. Yet, S-2151 takes away the power of the court to guard against some of the most harsh and devastating outcomes imaginable. S-2151 places a priority on enforcement while giving no regard to ensuring some level of basic fairness between separating couples. Efficiency and legal certainty have its place. But when a bill provides for enforcement of agreements that will leave one party a public charge after a long-term relationship – while the other party leaves with millions of dollars — that proposed law is unquestionably unconscionable.

John P. Paone, Jr.,
Attorney, Red Bank and Woodbridge


Thanks for making Lose the Training Wheels Camp a Success

To The Editor:

I would like to thank The Two River Times™ for the coverage of our Lose the Training Wheels bike camp held at Brookdale Community College from August 20-24. This is a program that teaches kids with disabilities to ride a two-wheeled bike independently over a five-day camp.

This tremendously successful event would not have been possible without the support of and generous donations by the following:

Brookdale Community College donated the Recreation and Events Center for the week, specifically, Michael Medley, assistant director sales and marketing, and Carol Ann Hafner, coordinator public relations.

Courtyard by Marriott in Lincroft donated the rooms for Lose the Training Wheels staff.

Shrewsbury Bicycles, our bike shop partner, was absolutely fantastic! Scott Doran and his staff really came through for us.

Jill Glenn of Glenn and Glenn Productions, Erika Graiff of Becoming Luminous, and Lily Occipanti of Kinningham Training helped with fundraising, organizing, and planning. Kate Cordaro of Two River Theater Company helped in securing volunteers.

Other businesses that generously donated goods or services were:

Anthony Bianciella, photographer, Piece O’ Cake in Shrewsbury, Beacon Awards and Signs in Middletown, Stelair Design Corp. in Long Branch, Paul J. Hooker of Challenged Youth Sports, Johnny Mac House of Spirits in Asbury Park, Federico’s Pizza in Shrewsbury, Queso Mexican Grill in Lincroft, Foodtown of Red Bank, Renew Wellness in Red Bank, Brahma Yoga Spa in Sea Bright, Lighthouse Financial Advisors in Red Bank, Campership of Monmouth County, Kinningham Training, My Gym Children’s Fitness Center in Shrewsbury, Eastpointe Chiropractic in Atlantic Highlands, The Salon at Manalapan, Page Chiropractic and Wellness in Atlantic Highlands, Cups and Cakes in Rumson, Entertain with Jane in Rumson, Sickles Market in Rumson, Earth Spirit in Red Bank, Spa and Bodywork Market in Red Bank, and Borough Supplies Inc. in New York, N.Y.

We would also like to thank our many wonderful volunteers, without whom this camp is not possible.

If you would like more information about participating, volunteering or sponsoring for next year’s camp, please contact me at jane.lincroftbike@gmail.com

Jane Kleiman,
Camp Director/Host, Lincroft 2012


Athletics Help Teens’ Physical, Mental Health

To the Editor:

America’s obesity epidemic bears an annual $450 billion cost, according to a graphic appearing in Forbes, and the American Heart Association and U.S. Centers for Disease Control and Prevention say a third of all teenagers are now overweight.

And while participation in athletics programs offers a potentially potent solution to the nationwide scourge of childhood and teen obesity – including its impact on both physical and mental health – school sports programs are being menaced at an alarming rate. As boards of education around New Jersey and the country are increasingly tasked with finding ways to reduce spending, athletics can appear as an attractive target.

Playing sports is a remedy to teen obesity, and participation in high school athletics is at an all-time high nationwide… and yet, there are constant threats to shrink or even eliminate interscholastic sports program. Such cutbacks are no less than direct menaces to our children’s health. We absolutely need to ensure that athletic opportunities are readily available for all young people.

A recent study published in the journal Pediatrics indicates that based on research conducted among New Hampshire and Vermont high school students, teens who play at least three sports per year are 39 percent less likely to be obese. And highlighting the worrisome specter of childhood and teen obesity, September has been designated “National Childhood Obesity Awareness Month“ via a 2011 proclamation by President Obama.

Also of note is the reality that interscholastic sports have significant value related to fostering the development of civic awareness, discipline, and teamwork among young people, as outlined in a recent NFHS (National Federation of State High School Associations) report.

Whether it’s playing an already well-established sport like football or basketball, or rapidly growing ones like lacrosse and volleyball, there are huge potential benefits for teens. We must do everything possible to safeguard the well-being and future of our young people.

Steven J. Timko
Executive Director
New Jersey State Interscholastic Athletic Association (NJSIAA)



Two River Moment

It’s back-to-school time, a rite of passage for all children, including this class of youngsters in a Little Silver classroom saying the Pledge of Allegiance and saluting the flag during the World War II years in the 1940s. This photograph is courtesy of Dorn’s Classic Images.



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Leave A Comment


  1. Mr Paone, With due respect, there are many people who have a different opinion about the family courts being ” a court of equity”. Just ask any of the alimony payes who have been sent into bankruptcy or have been jailed when outrageous payments ordered by the court cannot be met. It seems to me that the bill proposed would protect the persons who entered into the contact because they wanted “a contract”. NOT the opinion of a Judge who doesn’t care whatsoever about the people involved. Family court orders have RUINED the lives of many men and women in NJ.

  2. If NJ family Courts really functioned as a court of equity there would not be an alimony reform movement (www.njalimonyreform.org), there would not be a bill to strengthen prenuptial agreements, and there would not have been a law enacted in 2011 the restricted palimony.

    The fact is that decisions of this court over many decades based on unlimited judicial discretion over people’s lives coupled with complete immunity of family court judges has turned this institution into a court of bias (not equity). Unless courts are perceived by the people they serve as fair and just the courts will have undermined their legitimacy and will continue to draw efforts to curb their discretion.

    The courts are only one branch of our government system charged with interpreting law. However, they often behave as if they are the only government by writing laws as well as interpreting them. Imagine this, in NJ prenuptial contracts are routinely overturned. The perception is that no prenuptial agreement is safe.

    After divorce the family courts apply their version of equitable. They allow capable people to walk away from their education and careers in favor of collecting lifetime alimony. On the other side they burden others with lifetime support obligations that they do not modify even under dire circumstances and when a hard working individual wishes to retire.

    What we are observing in the legislature is a backlash after more than 40 years of nearly unrestrained practice in NJ family Courts. An effort to reign in the court and tell them what the people think is equitable.

  3. I am pleased to learn that the NJ legislature is proposing enforcement and strengthening of NJ pre-nuptial agreements. I am a member of New Jersey Alimony Reform and am working with a group of committed individuals that want to bring fairness into alimony reform in NJ. Strengthening pre-nuptial agreements is a beginning along the same continuum. I have found that, after the dissolution of a 25 years marriage, I can sing Tina Turner’s song “What’s love got to do with it?” I strongly do not believe that the end of a marriage should permit a get rich quick scheme. The division of assets accrued during the duration of the marriage is fair, as is a limited duration of alimony to assist the spouse with lesser income to get back on their feet. I strongly urge that all individuals who are entering into marriage consider a pre-nuptual agreement. After all, isn’t marriage supposed to be about love, NOT money.

  4. Perhaps John Paone needs to go to http://www.njalimonyreform.org and read stories of the men and women that are being treated unfair by the NJ Family Law system! There are fathers going to jail because they cannot afford to pay more than they make, due to job loss, retirment, and disablity. Folks out their don’t realize that the states in this country get funds from the federal government for every penny judges enforce the “bread winners” to pay their ex-spouses. So NJ lawyers and judges currently promote and enforce alimony! It’s more money in their pockets! Don’t fool yourselves people, these lawyers do not care about your life – only their bank accounts!



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