“But since you’ve been gone/ I can breathe for the first time/ I’m so movin’ on, yeah, yeah/ thanks to you/ now I get what I want/ since you been gone.” Recognize those lyrics? It’s Kelly Clarkson’s hit Since U Been Gone, and life is now imitating art. Kelly Clarkson and her husband have called it quits, and according to various news outlets, she is seeking for her prenuptial agreement with him to be enforced.
Prenuptial agreements may not be the stuff of great romance, but they are a necessary evil if you have assets to protect, like Kelly Clarkson. So how iron-clad are prenuptial agreements? Just how much protection does a prenuptial agreement actually afford?
Kelly Clarkson is not getting divorced in New Jersey (but if I’m wrong, call me, Kelly), but in New Jersey, the answer depends largely on when you entered into the prenuptial agreement. On June 27, 2013, a law went into effect strengthening the enforceability of prenuptial agreements. Prenuptial agreements entered into or revised after June 27, 2013, will be more difficult for a court (and your spouse) to set aside.
The old law (which still governs many prenuptial agreements) provided that a prenuptial agreement could be set aside if the agreement was “unconscionable” (i.e. shocking to the conscience, grossly unfair) at the time it was entered into OR at the time a party sought to enforce it (usually during a divorce). That essentially meant that years down the line, a party could claim that even though the agreement may have been fair before the parties married, by the time the parties were divorcing and the court was asked to rule on it, the agreement had become unconscionable. This created a lot of instability in New Jersey’s prenuptial agreements; some Judges were reluctant to enforce them at all.
Since June 27, 2013, things changed. The legislature deleted the provision which allowed courts to set aside a prenuptial agreement if it was determined to be unconscionable at the time of enforcement. Now, the party wishing to set aside a prenuptial agreement has the burden of proving, by clear and convincing evidence (only “beyond a reasonable doubt” is a higher legal burden) that either he or she entered into the agreement involuntarily or the agreement was unconscionable at the time it was entered into (i.e. before marriage). So, theoretically, any good fortune enjoyed by one of the spouses after the marriage took place should not be taken into account.
Here is hoping that Kelly doesn’t have “A Moment Like This” if she gets remarried!