Monday, October 20, 2014

New York Prenuptial Agreement

Last week, the Appellate Division reviewed a Nassau County case that dealt with the enforceability of a prenuptial agreement.  In doing so, the Court discussed the principles behind the agreements between spouses.

In this case, the Appellate Division was reviewing a prenuptial agreement from 1997 that was executed by the spouses 10 days before their marriage on Valentine’s Day. The agreement provided for waivers of interest in separate property, provided for alimony and for counsel fees if the agreement was not later challenged in court.

The Court discussed agreements between spouses,

An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct (see Christian v Christian, 42 NY2d 63, 73; Petracca v Petracca, 101 AD3d 695, 697-698; Rabinovich v Shevchenko, 93 AD3d 774, 775). "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Morandv Morand, 27 AD3d 626, 627; see Cioffi-Petrakis v Petrakis, 72 AD3d 868, 868-869).

In its review of the agreement on appeal, the Court found that they were unable to evaluate the fairness of the agreement because the husband had failed to provide financial disclosure as part of the agreement.  The husband attempted to rely upon his disclosures to his wife during the five years before they were married, but the Court found that as they were not included in the agreement itself, they were not to be considered when reviewing the agreement.

The Court was also concerned by the fact that the wife’s attorney was selected by her husband, paid by her husband and only met with her for a short time prior to the signing of the agreement.

This case demonstrates the importance of ensuring that your prenuptial agreement is properly prepared with ample time before your wedding so that any issues that arise can be addressed.

The full text of the decision can be found here.

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