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:
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 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 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 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
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.
Riebling, Proto & Sachs, 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