Defenses to a Prenuptial Agreement

While a prenuptial agreement can help resolve issues about property division and support during a divorce, certain factors could cause some if not all provisions to be invalidated. If you believe you may need a prenuptial agreement before marriage, or your prenuptial agreement has been challenged, you will want to work with the experienced Garden City lawyers at Fass & Greenberg. We have decades of family law experience and can help you draft a proper agreement that will withstand scrutiny, or mount a strong defense to a challenge to an existing one. 

When Can a New York Prenuptial Agreement Be Challenged?

Duly executed prenuptial agreements are generally valid and enforceable given the strong public policy favoring individuals deciding their own interests through contractual arrangements. Herr v. Herr, 97 A.D.3d 961 (2012).  A prenuptial agreement is binding, but contracts can be invalidated if they do not meet legal requirements. In New York, a prenup is vulnerable to attack if:

• It was not executed properly 
• The parties did not have separate attorneys
• One or both spouses failed to disclose debts and assets fully
• The terms (specifically with respect to spousal support) are manifestly unfair

Even though a prenup can be challenged under certain circumstances, that does not necessarily mean the agreement will be invalidated.  While a mere unequal division of assets is insufficient to establish unconscionability, an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment may be entered. Taha v. Elzemity, 157 A.D.3d. 744 (2^nd. Dept 2018). With the help of litigation attorneys Garden City, you can fight to ensure that your agreement is upheld.

What Are the Defenses?

To defend a contested prenup, you will need to demonstrate that the contract is valid under New York law. Potential defenses to a questioned prenup include:

Calling Witnesses

It is common for people to challenge prenups by claiming that they were under duress or mentally incapacitated at the time that the document was signed. If witnesses were present when the document was signed, these witnesses could potentially provide testimony that counters these challenges.

While courts are more likely to scrutinize a prenup in cases where both parties did not have independent representation, an agreement will not be invalidated solely because a spouse did not have a lawyer. If witnesses state that a spouse refused independent representation, the courts may be persuaded to ignore these challenges.

Providing Evidence That Supports the Prenup

A prenup must include full disclosure of assets and liabilities, and the information in the agreement must be accurate. However, when a person challenges a prenup based on fraud, the burden of proof lies with the challenger. The more evidence you can provide in support of your prenup, the more likely courts will uphold the agreement as valid.

When defending a prenup, an attorney will collect documents and other evidence that shows that demonstrate the prenup is accurate. Evidence is always the best defense against untrue accusations of fraud.

Avoiding Prenup Challenges

It is not always possible to defend a prenuptial agreement. For example, in Carter v. Fairchild-Carter, 187 A.D.3d 1360, (3^rd Dept., 2020), it was established that the Husband knowingly and fraudulently induced the Wife to sign an agreement in which he intentionally misrepresented the fair market value of the marital residence so as to deny her a fair distribution upon divorce.  In addition, given the disparity of the parties’ wealth and the fact that the agreement was unilaterally drafted by the Husband’s attorney and executed less than 24 hours prior to the wedding supported the trial court’s determination that the Husband made a deliberate effort to conceal the nature of the agreement. If you want to ensure that your prenup is upheld, drafting a prenup with the guidance of an experienced prenup agreement lawyer in New York is best. An attorney can help you to create a contract that is fully compliant with New York laws.

If your prenuptial agreement has been contested, or if you want to ensure that your prenup is airtight, you will want to work with an experienced family law attorney in Garden City. While the laws surrounding prenups can be complex, Fass & Greenberg will fight to ensure your rights and interests are protected. Call us today at (516) 742-8111 to learn more.