New Jersey Statutes

N.J. Stat. § 37:2-38 (2026)

Enforcement of premarital or pre-civil union agreement; generally

✓ current as of May 2026

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37:2-38. Enforcement of premarital or pre-civil union agreement; generally.

The burden of proof to set aside a premarital or pre-civil union agreement shall be upon the party alleging the agreement to be unenforceable. A premarital or pre-civil union agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:

a. The party executed the agreement involuntarily; or

b. (Deleted by amendment, P.L.2013, c.72)

c. The agreement was unconscionable when it was executed because that party, before execution of 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.

d. The issue of unconscionability of a premarital or pre-civil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.

Notes of Decisions

Cited in 9 cases (4 in the last 5 years), 2018–2025 · leading case: Hutchins v. Hutchins, 430 P.3d 502 (Mont. 2018).

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Hutchins v. Hutchins, 430 P.3d 502 (Mont. 2018). “§ 40-2-608(1)(b), MCA (providing a premarital agreement is unenforceable if the agreement was unconscionable when executed and , before execution of the agreement, the party challenging the agreement (1) was not provided a fair and reasonable disclosure, (2) did not voluntarily…”

Silverman v. Silverman, 206 A.3d 825 (Del. 2019). “See N.J. Stat. § 37:2-38 (requiring "full and fair disclosure of earnings, property, and financial obligations"); Cannon v.”

In the Matter of the Est. of James J. Gillette (p-257014, Middlesex Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2020). · cites it 6× “N.J.S.A. 37:2-38. A prenuptial agreement is unenforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that: a.”

Alma Papetti v. Arthur J. Papetti (N.J. Super. Ct. App. Div. 2024). · cites it 5× “Plaintiff then appealed, arguing the trial court erred when it: granted summary judgment despite the presence of genuine issues of material fact and incomplete discovery; and enforced an antenuptial agreement which did not comply with N.”

Lisa D. Steffens Vs. Robert S. Steffens (fm-18-0749-15, Somerset Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2019). · cites it 3× “Pursuant to N.J.S.A. 37:2-38, the party seeking to invalidate a prenuptial agreement must prove by clear and convincing evidence that "[t]he party executed the agreement involuntarily[,]" or the A-0192-18T1 7 agreement is unconscionable.”

Huny & Bh Assocs., Inc. Vs. Avi Silberberg (l-10677-15, Bergen Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2021). · cites it 2× “235 (2021), and the burden rests with the A-1696-17 79 opponent to set them aside, N.J.S.A. 37:2-38, they must be in writing, see N.”

Luciana Gonzaga v. Est. of Jose A. Barros (N.J. Super. Ct. App. Div. 2024). · cites it 2× “Pursuant to N.J.S.A. 37:2-38, the party seeking to invalidate a prenuptial agreement must prove by clear and convincing evidence that "[t]he party executed the agreement involuntarily[,]" or the agreement is unconscionable.”

Silverman v. Silverman (Del. 2019). “See N.J. Stat. § 37:2-38 (requiring “full and fair disclosure of earnings, property, and financial obligations”); Cannon v.”

In the Matter of the Est. of Lynda Nathanson Sutton (N.J. Super. Ct. App. Div. 2025). “This language fulfills the requirements of N.J.S.A. 37:2-38(c) by showing both petitioner and decedent had adequate knowledge of the finances of the other.”

— N.J. Stat. § 37:2-38(c) — 4 cases

Lisa D. Steffens Vs. Robert S. Steffens (fm-18-0749-15, Somerset Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2019). “Pursuant to N.J.S.A. 37:2-38, the party seeking to invalidate a prenuptial agreement must prove by clear and convincing evidence that "[t]he party executed the agreement involuntarily[,]" or the A-0192-18T1 7 agreement is unconscionable.”

Huny & Bh Assocs., Inc. Vs. Avi Silberberg (l-10677-15, Bergen Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2021). “235 (2021), and the burden rests with the A-1696-17 79 opponent to set them aside, N.J.S.A. 37:2-38, they must be in writing, see N.”

Luciana Gonzaga v. Est. of Jose A. Barros (N.J. Super. Ct. App. Div. 2024). “Pursuant to N.J.S.A. 37:2-38, the party seeking to invalidate a prenuptial agreement must prove by clear and convincing evidence that "[t]he party executed the agreement involuntarily[,]" or the agreement is unconscionable.”

— N.J. Stat. § 37:2-38(c)(1) — 2 cases

In the Matter of the Est. of James J. Gillette (p-257014, Middlesex Cnty. & Statewide) (N.J. Super. Ct. App. Div. 2020). “N.J.S.A. 37:2-38. A prenuptial agreement is unenforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that: a.”

— N.J. Stat. § 37:2-38(d) — 1 case

Alma Papetti v. Arthur J. Papetti (N.J. Super. Ct. App. Div. 2024). “Plaintiff then appealed, arguing the trial court erred when it: granted summary judgment despite the presence of genuine issues of material fact and incomplete discovery; and enforced an antenuptial agreement which did not comply with N.”

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