The Prenuptial Agreement
In New York State Divorce or Family Law cases one potential issue is the validity of a prenuptial agreement. Many people enter into agreements before or during a marriage to identify their individual rights and responsibilities. However, as with any contract they are open to various challenges.
If you are considering a divorce or are in the middle of a divorce action it is important to understand how the New York divorce laws treat prenuptial agreements. If you are the subject of a prenuptial agreement it is essential to have an experienced divorce lawyer help in this often complex area of the law. Our law firm regularly drafts and challenges prenuptial agreements.
If a spouse chooses to challenge the validity of a prenuptial agreement the challenging spouse must establish the existence of fraud, duress, overreaching or unconscionability. The New York divorce courts have adopted this rule in Rabinovich v. Shevchenko, 93 AD3d 774 and Christian v. Christian, 42 NY2d 63.
This area of the law is complex because there is not one factor that will warrant setting aside a prenuptial agreement therefore, all factors surrounding the creation and execution of the document will be reviewed by the courts. The burden is on the party seeking to invalidate a prenuptial agreement and should show the existence of as many factors as possible. These factors include the following:
Unconscionable
An unconscionable bargain is one which no person in his or her senses and not under delusion would make, on the one hand, and as no honest and fair person would accept on the other. The inequality being so strong as to shock the conscience and confound the judgment of any person of common sense.
For example, in an agreement drafted by the husband's lawyer, the wife was not represented and the husband and the husband's father presented the agreement to the wife on the night before the parties' wedding the New York Divorce Courts found that agreement to be invalid.
Duress
Duress is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting another person to improper pressure which overcomes his will and coerces him to comply with demand to which he would not yield if acting as a free agent.
For example, a husband faced deportation if not married within a couple of weeks was forced to sign a prenuptial agreement.
Overreaching
Overreaching is the act of taking unfair commercial advantage of another especially by fraudulent means.
For example, the New York Divorce Courts have found that a prenuptial agreement was invalid when the wife was not represented by counsel and that the agreement was prepared by the husband's attorney who also acted as the wife's attorney.
Fraud
Fraud is one of the most common arguments to invalidate an agreement. In a fraud claim a party must show that the other tried to conceal facts, usually financial, to induce the other party to sign the agreement to their detriment.
For example, one party does not give full disclosure of financial assets to the other party thereby hiding assets from the other party outside of the agreement.
How to Invalidate a Prenuptial Agreement
Although the case law generally holds that no one factor, by itself, will warrant setting aside of a prenuptial agreement, the existence of many factors may establish the invalidity of the agreement. In order to make a proper determination about the validity of a prenuptial agreement you must speak with an experienced divorce lawyer.
At Proto, Sachs & Brown, LLP we have decades of experience in Family and Divorce law. We have drafted and challenged countless prenuptial agreements always arguing for our client's best interest.
Don't waive your rights! Call our Westchester County Divorce lawyers today. Our offices are located in downtown White Plains and we are available for a free initial consultation. We can be reached by telephone (914) 946-4808 or by E-Mail.