Chapter 41 PRENUPTIAL AGREEMENTS

JurisdictionNew York

Chapter Forty-One

Prenuptial Agreements

I. Prenuptial Agreements

Not all marriages are made in Heaven; nor entered solely for reasons of the heart.6396 The purpose of a prenuptial agreement is to either shield the monied-spouse's assets or to protect children from prior relationships.6397

Prenuptial agreements most often involve substantial disparities of wealth between the parties; nevertheless, such disparities by themselves do not create grounds to set aside marital agreements.
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Although "there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties," an agreement between prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct. Nevertheless, such results remain the exception rather than the rule. The burden of producing evidence of such fraud, duress or overreaching is on the party asserting the invalidity of the agreement. 6398

The terms of a prenuptial agreement are not manifestly unfair merely because a party may enjoy a less lavish lifestyle upon divorce than existed during the marriage. The purpose of a prenuptial agreement is not to equitably divide up assets, and to maintain the marital standard of living for the lesser-monied spouse. That is the purpose of the statutory scheme (DRL § 236(B)(5), (6), and is not the reason why most prospective spouses enter into prenuptial agreements.6399

In Gottlieb v. Gottlieb,6400 the First Department rejected the argument that a prenuptial agreement can be set aside if its terms do not match "the degree of economic interdependence" the parties shared during the marriage because such a ruling could undo the vast majority of marital agreements. The majority emphasized that a party may have legitimate reasons for not wanting to give assets to an ex-spouse, regardless of how the couple managed their money during the marriage. For example, in many cases, prenuptial agreements are used to preserve assets so that they are available for children of the current, or a former, marriage.

In Robbins v. Robbins,6401 an action to set aside a prenuptial agreement, Justice Matthew Cooper, Supreme Court, New York County, opened his decision with an overview of the de rigueur challenges to prenuptial agreements upon commencement of an action to terminate the marriage:

With the divorce rate in the United States hovering between 40 and 50 percent, a prenuptial agreement has become almost de rigueur for wealthy people planning to marry. By insisting on a "prenup," the "spouse-to-be" with the greater assets or income can insure that, in the event the marriage ends in divorce, he (for even in today's world that person is still more likely to be a he) will not have to share those assets through equitable distribution or part with that income by the payment of spousal maintenance. Moreover, a prenuptial agreement can prevent much of the costly litigation that would otherwise ensue over these core financial issues.
This, of course, does not mean that the existence of a prenuptial agreement guarantees that a divorce will remain immune from litigation. To the contrary, litigation over the validity, enforceability and interpretation of prenuptial agreements is one of the mainstays of matrimonial practice. In most cases, that litigation centers on the wife's claim that the prenuptial agreement is invalid or otherwise unenforceable, or that for some other reason she should receive more than what the agreement would appear to entitle her to receive.

A. Recognition of Prenuptial Agreements as Binding Contracts

There is a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements.6402 New York has long permitted engaged couples to enter into prenuptial agreements governing the rights of each in the estate of the other upon the other's death.6403 However, this right is not and has never been without limitation. The State is deeply concerned with marriage and takes a supervisory role in matrimonial proceedings. Indeed, in numerous contexts, agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond that afforded contracts in general.6404

It is well settled that duly executed prenuptial agreements are generally valid and enforceable given the "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements."6405 While an agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability,6406 where the circumstances surrounding the execution of the agreement raise no issue of fact as to whether there was overreaching, we need not inquire into whether the terms of the agreement are manifestly unfair.6407 Where a prenuptial agreement and the circumstances surrounding its execution are "fair," there is no further inquiry.6408

The setting aside of a prenuptial agreement is "the exception rather than the rule," and the burden of establishing fraud, duress or overreaching is on the party seeking to set aside the agreement. 6409 The party seeking to set aside a prenuptial agreement must meet a heavy burden.6410 A party attacking the validity of such an agreement must shoulder the heavy burden of coming forward with evidence demonstrating fraud, which will not be presumed, and which must have as its basis evidence of overreaching—the concealment of facts, misrepresentation or some other form of deception. If the spouse opposing the validity of the agreement fails to raise a triable issue of fact, the proponent of the agreement is entitled to summary judgment and unsubstantiated and conclusory allegations are simply insufficient to raise such an issue of fact.6411

N.Y. General Obligations Law § 3-303 (GOL) provides that a contract made between persons in contemplation of marriage remains in full force after the marriage takes place. Religious prenuptial agreements have been treated variously.6412 Prenuptial agreements are subject to GOL § 5-701(a)(3).

As with all contracts, prenuptial agreements are construed in accord with the intent of the parties, which is generally gleaned from what is expressed in their writing. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Extrinsic evidence of the parties' intent may not be considered unless a court first finds that the agreement is ambiguous.6413

In Tutak v. Tutak,6414 the plaintiff alleged that the defendant, Simon Tutak, arranged a marriage between her and his son, Koren, promising the plaintiff that he would provide the financial support for his son, the plaintiff and their children. Simon further promised to purchase a home for the couple and to provide them with the means to maintain and furnish it. Simon purchased a home in his own name for the use of the couple. After a year of marriage, Koren left the plaintiff and the child. Simon provided no support for the plaintiff or the child, and sought to evict them from the house. The plaintiff's demand for specific enforcement and declaratory judgment against Simon, that he was required to support her and the child, was dismissed under GOL § 5-701(a)(3): "[E]very promise made in consideration of marriage, except mutual promises to marry, is void unless it or some note or memorandum thereof is in writing and subscribed by the party to be charged."

A duly executed antenuptial agreement, by which the parties agree in advance of the marriage to the resolution of disputes that may arise after its termination, is valid and enforceable.6415 A duly executed prenuptial agreement is given the same presumption of legality as any other duly executed contract.6416 As with all contracts, it is assumed that " 'a deliberately prepared and executed agreement reflects the intention of the parties,' and, generally speaking, the court may consider the parties' intent only to the extent that it is evidenced by their writing."6417

A prenuptial agreement as to child custody is not binding on the court6418 as no agreement can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interests.6419

A prenuptial agreement made before the effective date of the equitable distribution statute is valid and enforceable and bars any claims for equitable distribution of marital assets.6420 A post-marital agreement signed before the effective date of the equitable distribution law is similarly valid and enforceable.6421

Extreme procedural caution must be exercised to comply with the statutory time frames so that a party does not lose the right to appeal a negative determination arising from the question of whether the judgment accurately reflected the agreement. Such an objection is not preserved for appellate review if the objecting party failed either to submit a proposed judgment within 60 days of the order directing settlement or did not object to the portion of the proposed judgment submitted by the wife.6422

A party may be estopped from attacking the validity of an agreement where the attacking party is seeking to avoid the agreement in order to obtain rights arising from a marriage that never would have occurred but for the agreement.6423

B. Interpreting the Agreement

As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing. 6424 When interpreting a prenuptial agreement, the document, like an ordinary contract, must be read as a whole to determine the parties' intent, as limited by their writing,6425 giving a practical interpretation to the language employed so that the parties' reasonable expectations are...

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