Recognizing that the future can be uncertain, most lawyers advise their clients to sign a prenuptial agreement in order to resolve important issue that are certain to arise if the couple decides to end their marriage. Many couples, especially those owning significant assets, use prenuptial agreements to settle questions of asset valuation and division. In most cases, prenuptial agreements achieve their intended purpose, but in some cases, one party discovers that the terms of the prenuptial agreement – especially provisions governing division of the couple’s assets – are harsh and unfair. What can be done to alleviate the unfairness? Contrary to the belief of most New Yorkers, prenuptial agreements have been successfully challenged on many occasions.
The basics
Prenuptial agreements are contracts between two people intending to marry each other. The applicable New York statute defines a prenuptial agreement as “a contract made between persons in contemplation of marriage.” In order for a prenuptial agreement to be enforceable, the parties must follow certain formalities. The agreement must be in writing and witnessed by at least two persons known to both parties. An oral prenuptial agreement is unenforceable.
Other challenges to a prenuptial agreement
In New York, a prenuptial agreement will not be enforced if it was obtained by fraud. The most common type of fraud is the failure of one person to fully disclose his or her assets to the other party before the marriage takes place. A second common reason for invalidating a prenuptial agreement is coercion or duress. A party hoping to benefit from the prenuptial agreement in the event the couple divorces will attempt to use threats of financial mistreatment or fighting about custody of the children to force the other party into signing the agreement. Generally, any form of fraud or duress will cause a court to refuse to enforce the agreement. Both parties must have had the opportunity, before signing the agreement, to consult an independent attorney. If one party was deprived of that opportunity by the party attempting to enforce the agreement, the agreement will not be enforce.
Unfairness or lack of equity
If the prenuptial agreement creates a situation that is unfair or inequitable between the parties, a court will refuse to enforce the agreement as written.
A person who has been requested to sign a pre-nuptial agreement may find comfort in seeking an experienced family lawyer to review the agreement. A knowledgeable attorney can provide a helpful analysis of the agreement before it is too late.