Two cross-motions in this matrimonial case raise important issues not yet resolved in this State: the conditions under which an antenuptial (premarital) agreement defining the rights and obligations of husband and wife in the event of a divorce should be enforced, and the related issue of burden of proof, viz: whether the proponent or the opponent of the agreement must establish either the conditions of validity or the conditions of invalidity of the agreement.
The issues arise from plaintiff wife's motion seeking pendente lite support. Defendant husband opposes that claim and also seeks summary judgment dismissing those portions of the complaint which demand equitable distribution, support and counsel fees. In the alternative, defendant asks for specific performance enforcing the antenuptial agreement which he claims bars all such relief.
Plaintiff and defendant were married on March 3, 1979, when he was 65 years old and she was 60. Each had been married before and each had grown children from that prior marriage.
Until her marriage to defendant, plaintiff had lived in a home she owned in Fort Lauderdale, Florida. At defendant's suggestion, she sold it for approximately $200,000.00. The proceeds of that sale represent her major asset and produce most of her annual interest and dividend income of approximately $20,000. In addition she receives Social Security benefits of $200 per month.
In 1979, defendant was, and he still is, a man of considerable substance. He acknowledges that throughout his marriage to plaintiff he had an annual gross income in excess of $250,000 and he also acknowledges a net worth of more than $5,000,000.
Following their marriage the parties lived part of the year in a cooperative apartment which defendant owned in Florida, and part of the year in another apartment he owned in Hackensack. They separated during the summer of 1983 and the complaint for divorce and the present motions were filed shortly thereafter.
The parties' antenuptial agreement was signed and acknowledged (in New Jersey) on January 24, 1979 -- approximately six weeks before their marriage. It is relatively brief and simple, consisting of an introduction followed by eight numbered paragraphs. Exclusive of signatures and acknowledgments, it encompasses just a little more than two double-spaced, type-written pages.
The introductory paragraph states that the parties (identified as "Reba" and "John") are contemplating marriage and "are desirous of defining their respective property rights for the benefit of themselves and their children." It then says that "for value received", the parties agree that "all real and personal property" owned by either of them at the time of their marriage, or which either "may acquire from any source whatsoever during their marriage" shall remain "their respective separate property" except as "expressly otherwise provided" in the agreement. In the event of a "termination of the marriage during his lifetime" John is to pay Reba $100,000 "in full satisfaction of all claims" against him. Should John predecease Reba "during the marriage", she is to receive $100,000 free of estate or inheritance taxes and also free lifetime use of his Florida apartment. Should Reba predecease John, her estate is to "pass free from any claim by John." Each party agreed to remain responsible for his and her own premarital debts, and each reserved the right to provide more generously for the other by will.
In arguing for the validity of the agreement defendant claims that "prior to the execution of this agreement, Reba was represented by independent counsel who negotiated the agreement
on her behalf." Plaintiff does not deny that representation, but claims that defendant concealed his financial condition, and that she entered the agreement "for purposes . . . of insuring my independent state would remain so," without the "remotest idea of defendant's net worth, his income, or the vast extent of his holdings and the immense value of his assets." She notes that she had been living in Florida and had no knowledge of defendant's business interests and financial affairs in New Jersey. She says she had no "inkling" that he was "very cleverly duping me" into an unfair agreement "adverse to what any wife has the right to expect." She charges that he "made no effort to disclose his wealth to me and concealed this by omitting any questions of disclosure of my assets, income or net worth." Plaintiff points out that the agreement does not refer to any disclosure and says she was "astonished" to hear defendant's comments concerning his net worth -- which he initially placed at $12,000,000, but which he has now reduced to $5,000,000. She claims she "gave up my home and my furniture and altered my entire life" in anticipation of her marriage and "had no way of knowing that this spirit of accommodation and compromise was being met by duplicity and concealment of assets by my husband."
In view of the large volume of matrimonial litigation today and the number of second and even third marriages that come before the courts, it is surprising that there has been no clear-cut decision in this State, concerning the validity, and conditions of validity, of antenuptial agreements which define rights and obligations in the event of a divorce. Nevertheless, that is precisely the case. Indeed, commentators have noted that there remains uncertainty as to whether the law of New Jersey has moved away from the traditional common law view that such agreements are contrary to public policy and void because they tend to facilitate or promote divorce. See, 1 Skoloff, New Jersey Family Law Practice, § 7.4B (4th ed., 1982); Note, 12 Rutgers L.J. 283 (1980).
That "traditional" view distinguished between antenuptial agreements which defined rights in the event of death (favored by the law and generally enforced) from agreements dealing with divorce, which were viewed as inconsistent with the state's interest in preserving marriage and hence void. As late as 1970 -- and sometimes even thereafter -- that rule was set out as the settled law in most jurisdictions in the United States. Thus, in the leading case of Posner v. Posner, 233 So. 2d 381, 382 (Fla.Sup.Ct.1970), the court noted that:
It has long been the rule in a majority of the courts of this country . . . that contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy . . . . The reason for the rule lies in the nature of the marriage contract and the interest of the State therein.
And in the Note cited above the author comments that:
Before 1970 (the date of the Posner decision) antenuptial agreements that stipulated terms regarding alimony and property settlement upon divorce were almost universally considered void as against public policy. [12 Rutgers L.J., supra, at 292.]
To the same effect, see 2 Lindey, Separation Agreements and Antenuptial Contracts, § 90 at 90-33 (1983). But see supplementary pages in the same volume citing later cases that uphold such agreements.
As noted, Posner v. Posner, supra, is the leading case upholding the validity of antenuptial agreements dealing with post-divorce rights and obligations. It has been frequently cited and more often than not followed in other jurisdictions.
In Posner the court first noted the favored treatment of antenuptial agreements which fixed rights and responsibilities in the event of the death of a spouse:
Antenuptial or so-called 'marriage settlement' contracts by which the parties agree upon and fix the property rights which either spouse will have in the estate of the other upon his or her death have . . . long been recognized as being conducive to marital tranquility and thus in harmony with public policy. [233 So. 2d at 383.]
The different treatment accorded agreements dealing with divorce, the court said, stemmed from what had been viewed as the interest of the state in preserving marriages, from the generally ...