There can be a variety of reasons for individuals entering into a pre-nuptial agreement. However unless a pre-nuptial agreement is enforceable it’s not worth writing. If a divorce proceeding is initiated a claim can be made is to set aside the pre-nuptial agreement. The purpose of this blog article is to discuss a variety of issues that should be dealt with to limit the potential of a pre-nuptial agreement being set aside.
Issues of duress and coercion can be the basis of trying to set aside a pre-nuptial agreement. To avoid these issues each party to the pre-nuptial agreement should be represented by independent counsel. The pre-nuptial should not be executed the day before, a night before or even a week before a date of a wedding. The parties should have a reasonable period of time to prepare, review and execute the pre-nuptial agreement without being impacted on by the impending celebration of their marriage.
The parties who enter a pre-nuptial agreement in the State of New York should disclose their assets, debts, income and financial obligations. This allows the parties to make a knowing, reasonable decision with regard to entering into this agreement.
When a pre-nuptial agreement is challenged a court of competent jurisdiction will review the agreement. It must not be so unfair or imbalanced on its face that a court will refuse to enforce it. Unconscionability deals with the issue of an agreement being so unfair as to shock the consciousness of the judge ruling upon it. This means for an agreement to be fair and reasonable between a monied spouse and a non-monied spouse there must be come consideration given to the non-monied spouse.
In the State of New York each of the parties should have independent counsel representing them with regard to the preparation and execution of the agreement. Each party having their own attorney who can explain and make sure their client fully understands the agreement and all of its implications. Each party having their own attorney is especially important when they are waiving important legal rights they would be entitled to in a divorce proceeding. As a general rule my office will not enter into a pre-nuptial agreement unless the other party is represented by an attorney.
Elliot S. Schlissel, Esq. has been drafting pre-nuptial agreements for clients located throughout the Metropolitan New York area for more than 35 years.
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