Pre nuptial agreements are becoming increasingly common in New York.  I have been preparing more and more as time goes on.  Many people always ask me will it hold up in Court?  As long as the agreement complies with the laws of execution in New York, more and more litigants are finding that it is difficult to set aside agreements under New York State Divorce laws.

Continue reading "Duress is Difficult to Prove" »

Posted by Brian D. Perskin at 9:39 AM | Permalink | Comments (0)

  I ran across this article

The Validity of Prenuptial Agreements

Joel R. Brandes

New York Law Journal
December 22, 1998

PROPERTY SETTLEMENTS are encouraged as consistent with the public policy of New York. Such settlements in prenuptial agreements must be fair and reasonable and not tainted with fraud, misrepresentation, coercion or imposition. In the absence of such taints, these agreements have been presumed to be valid, and the party alleging taints or defects has had the burden of proof to establish their invalidity.1

Domestic Relations Law (DRL) §236,[B](3), enacted in 1980, attempted to modernize the New York law dealing with prenuptial agreements and with agreements made between spouses during their marriage. Such agreements are commonly referred to as a "stipulation of settlement," "property settlement," "settlement agreement" or "opting out agreement" (referred to as "settlement agreements" in this article).

The subject matter of such agreements includes:

1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of §5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for custody, care, education and maintenance of any child of the parties.

Where a settlement agreement has been incorporated into a judgment that is valid on its face,2 collateral attack is inhibited. Representation by experienced counsel3 and ratification4 of the agreement, or laches,5 also inhibit or bar subsequent challenges to the validity of the agreement.

The Issue of Disclosure

Perhaps the most intriguing issue relates to nondisclosure. During marriage spouses are subject to the special duties imposed by their confidential relationship. As noted in Christian v. Christian,6 those fiduciary duties are imposed independently of any statute. In addition, the spirit and the letter of the Equitable Distribution Law (EDL) requires full disclosure between spouses, and to "opt out" of the statutory system there must be a full and complete disclosure of all financial data unless, perhaps, there is an intelligent waiver. Nevertheless, it is a perilous undertaking and it invites trouble. Courts ordinarily are wary of waivers of full disclosure. Matrimonial attorneys often insert clauses in settlement agreements that contain self-serving declarations that each party has made full financial disclosure to the other; that their respective counsel has fully explained to each of them the legal and practical effect of the terms of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair, and not the result of fraud, duress or undue influence.7 If "unconscionability" is established, such clauses certainly have limited, if any, effect. But if the settlement agreement is fair on its face, and especially if the complaining party was represented by independent counsel, such clauses are effective and, at a minimum, place a heavy burden on the party who asserts invalidity.8 Statements of net worth are mandatory and liberal discovery procedures on financial matters are available. This obligation regarding disclosure also applies to the bargaining stage prior to reaching an agreement. Since the settlement agreement may serve in lieu of valuation and distribution by the court, it is imperative that the parties know what they are doing and what is at stake. In the past, prenuptial agreements were treated differently from settlement agreements. Courts sustained the validity of a prenuptial agreement where there was an intelligent waiver and full disclosure was not made. In Hoffman v. Hoffman,9 the court held that a failure to disclose the full extent of a party's assets does not in itself constitute such fraud or overreaching that would invalidate a prenuptial agreement, where no representations were made and thus none were relied upon. In Matter of Greiff 10 the Court of Appeals extended the concept of "fiduciary relationships" to engaged parties when they execute a prenuptial agreement, and it held that the existence of certain "exceptional circumstances" can warrant a shift of the burden of proof bearing on its legality and enforceability. Appellant Helen Greiff married Herman Greiff in 1988 when they were 65 and 77 years of age, respectively. They entered into reciprocal prenuptial agreements in which each expressed the usual waiver of the statutory right of election as against the estate of the other. The husband died three months after the marriage, leaving a will that made no provision for his surviving spouse. The will left the entire estate to his children from a prior marriage. When Mrs. Greiff filed a petition seeking a statutory elective share of the estate, Mr. Greiff's children countered with the two prenuptial agreements, which they claimed precluded Mrs. Greiff from exercising a right of election against her husband's estate.

'Influence and Advantage'

The Surrogate found, after a trial, that the husband "was in a position of great influence and advantage" in his relationship with his wife to be, and that he was able to subordinate her interests, to her prejudice and detriment. It further determined that the husband "exercised bad faith, unfair and inequitable dealings, undue influence and overreaching when he induced the petitioner to sign the proffered antenuptial agreements," particularly noting that the husband "selected and paid for" the wife's attorney. The Surrogate's Court invalidated the prenuptial agreements and granted a statutory elective share of decedent's estate to the surviving spouse. The Appellate Division reversed on the law, declaring that Mrs. Greiff had failed to establish that her execution of the prenuptial agreements was procured through her then-fiance's fraud or overreaching. The Court of Appeals granted the widow leave to appeal, and it reversed. It stated the general rule that a party seeking to vitiate a contract on the ground of fraud bears the burden of proving the impediment attributable to the proponent seeking enforcement.11 It said that this rule also applies generally to controversies involving prenuptial agreements.12 However, it noted that it has held that where parties to an agreement find or place themselves in a relationship of trust and confidence at the time of execution, a special burden may be shifted to the party in whom the trust is reposed to disprove fraud or overreaching, citing, among other things, Christian v. Christian.13 As an illustration, the Court referred to Matter of Gordon,14 where the administrator of the decedent's estate challenged the transfer of funds by the decedent, one month before her death, to the nursing home in which she was a patient. It pointed out that when it invalidated the transfer it stated:

Whenever * * * the relations between the contracting parties appear to be of such a character as to render it certain that * * * either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, * * * it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood" * * * .

The court held that this rule can be applied to the execution of prenuptial agreements. It emphasized, however, that the shift of the burden of proof is neither presumptively applicable nor precluded. The court noted that its 1894 decision in Graham v. Graham 15 has been read to hold that prenuptial agreements were presumptively fraudulent because of the nature of the relationship between prospective spouses. Its more recent decision in Matter of Phillips,16 on the other hand, was urged to suggest that prenuptial agreements may never be subject to burden-shifting, regardless of the relationship of the parties at the time of execution and the evidence of their respective conduct.

Equal Footing

The Court pointed out that Graham was decided more than 100 years ago, and it indicated that prospective spouses stand in a relationship of confidence that necessarily casts doubt on or requires strict scrutiny concerning the validity of a prenuptial agreement. Graham was based on the outdated premise that the man "naturally" had disproportionate influence over the woman he was to marry. In 1998, society and the law reflect a more progressive view. They now reject the assumption of inherent inequality between men and women, in favor of a fairer, realistic appreciation of cultural and economic realities. The law now starts marital partners off on an equal plane. Noting that Phillips "tugs in the opposite direction" from Graham, the court found that it did not upset the principles enunciated in Graham, because while holding that prenuptial agreements are not enveloped by a presumption of fraud, the Court in Phillips indicated that some extra leverage could arise from the "circumstances in which the agreement was proposed." It distinguished this language in Phillips from the holding in Graham, finding it was broad enough to encompass the unique character of the bond between prospective spouses whose relationship, by its nature, is "permeated with trust, confidence, honesty and reliance." The Court of Appeals held that the spouse who contests the validity of a prenuptial agreement bears the burden to establish a "fact based, particularized inequality" before the burden shifts to the party seeking to uphold the validity of the agreement to disprove fraud or overreaching. The court thus eliminated the presumption of fraud enunciated in Graham and adopted a "particularized and exceptional scrutiny" test. As the Appellate Division did not apply these legal principles, the Court remitted the case to it for a new determination. It directed that the question for it to determine is "whether, based on all of the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shift the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence." Greiff demonstrates that the issue is one of fairness in the negotiations, and that, like beauty, may lie in the eyes of the beholder. Prior to this determination, the intermediate appellate courts upheld antenuptial agreements not tainted by fraud, without an affirmative obligation on the part of both parties to fully disclose their finances and without consideration of whether the terms of the agreement were fair when made. These cases did not reflect the new public policy of New York as enunciated in the Christian case and in the EDL, but adopted the policy that existed prior to July 19, 1980. Greiff apparently changes all of this and elevates the status of being engaged to its rightful place as a fiduciary relationship.

----------------------

Notes

(1) Matter of Phillips, 293 NY 483, 58 NE2d 504, reh den 294 NY 662, 60 NE2d 389. (2) Re Estate of Miller, 97 AD2d 581; Lambert v. Lambert, 530 NYS2d 223. (3) See Stoerchle v. Stoerchle, 101 AD2d 831; Richardson v. Richardson, 142 AD2d 563. (4) See Stoerchle v. Stoerchle, supra, Glaser v. Glaser, 127 AD2d 741; McDougall v. McDougall, 129 AD2d 685. (5) See Rubinstein v. Rubinstein, 130 AD2d 567. (6) 42 NY2d 63. (7) See Wile v. Wile (2d Dept) 100 AD2d 932, which attached significance to such clauses. (8) Wile v. Wile, supra. Levine v. Levine, 56 NY2d 42 (1982). (9) (3d Dept) 100 AD2d 704. (10) __ NY2d __ , 98 N.Y. Int. 0130. Oct. 27, 1998. (11) Matter of Gordon v. Bialystoker Ctr. and Bikur Cholim, 45 NY2d 692. (12) Matter of Phillips, supra. (13) 42 NY2d 63 (1977). (14) Supra, N. 11. (15) 143 NY 573, 579, 580. (16) Supra. *********

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Posted by Brian D. Perskin at 5:43 PM | Permalink | Comments (0)

  Pre nupts are valid, and it is difficult to get them thrown out in Courts in New York, read the following case from the third department.....

 - - - Darrin

 

Darrin v. Darrin, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1555892)(2007 N.Y. Slip Op. 04558)(May 31, 2007):

 

Susan C. DARRIN, Appellant,

v.

David DARRIN, Respondent.

 

May 31, 2007

 

Before: CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and KANE, JJ.

CARDONA, P.J.

 

Appeal from an order of the Supreme Court (Teresi, J.), entered November 28, 2006 in Albany County, which granted defendant's motion for partial summary judgment finding the prenuptial agreement executed by the parties to be valid and enforceable.

 

On July 20, 1987, five days before their wedding ceremony, plaintiff and defendant entered into a prenuptial agreement wherein, among other things, defendant disclosed his financial status and acknowledged his future potential interest in a substantial family trust. In accordance with certain provisions of the agreement, defendant was to make fixed monthly payments to plaintiff which would increase upon their tenth wedding anniversary and, in the event of divorce, a cash settlement based upon the length of the marriage would be paid to plaintiff. Given these monthly payments and cash settlement, plaintiff waived, among other things, all rights to spousal support, maintenance and equitable distribution in the event the parties divorced. Thereafter, a July 25, 1987 wedding ceremony was held, however, due to a problem with the filing of the marriage certificate, the parties were not officially married until a subsequent ceremony in November 1987.

 

In April 2005, plaintiff commenced this action seeking a divorce as well as, among other things, maintenance and equitable distribution. Defendant moved for partial summary judgment declaring the prenuptial agreement to be valid and enforceable. In opposition, plaintiff alleged that the agreement was procured through fraud, duress and overreaching. Supreme Court granted defendant's motion, resulting in this appeal.

 

We find no error in granting defendant partial summary judgment upholding the validity and enforceability of the parties' prenuptial agreement. It is well settled that a prenuptial agreement is accorded the same presumption of legality as any other contract (see Matter of Garbade, 221 A.D.2d 844, 845 [1995], lv denied 88 N.Y.2d 803 [1996]; Brassey v. Brassey, 154 A.D.2d 293, 294-295 [1989] ) and the validity of such an agreement is presumed unless the party opposing the agreement comes forward with evidence demonstrating "fraud, duress, or overreaching, or that the agreement or stipulation is ... unconscionable" (Korngold v. Korngold, 26 AD3d 358, 358 [2006], lv dismissed 7 NY3d 861 [2006]; see Costanza v. Costanza, 199 A.D.2d 988, 989 [1993] ). " ?[I]n the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed.... Such a presumption [of fraud] must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception? " (Matter of Sunshine v. Sunshine, 51 A.D.2d 326, 328 [1976], affd 40 N.Y.2d 875 [1976], quoting Matter of Phillips, 293 N.Y. 483, 491 [1944] ). Furthermore, where the spouse opposing the validity of the agreement fails to raise any triable issue of fact, the proponent of the agreement is entitled to summary judgment (see Tremont v. Tremont, 35 AD3d 1046, 1047 [2006] ).

 

Even accepting plaintiff's allegations as true, a review of the record herein fails to demonstrate any triable issues of fact with respect to fraud, duress or overreaching in connection with the execution of the prenuptial agreement. With respect to plaintiff's allegation of duress, the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed. Moreover, despite the fact that plaintiff was unemployed at the time the agreement was executed and allegedly dependent on defendant's support, there is no evidence that defendant used his wealth as leverage to coerce plaintiff to sign the agreement. Although plaintiff also alleges coercion in the hurried nature of the circumstances surrounding the procurement of the agreement, the record fails to support such a contention, particularly in light of the fact that the parties were not officially married until four months after the agreement was signed. In regard to plaintiff's challenge to the effective and independent representation of her attorney, the conclusory allegations are insufficient to raise a triable issue of fact (see Korngold v. Korngold, supra at 358-359; see also Colello v. Colello, 9 AD3d 855, 858 [2004] ).

 

Turning to plaintiff's allegation of fraud in the inducement as evidenced by defendant's failure to abide by various provisions in the agreement-specifically his failure to increase his monthly payments to her on their tenth anniversary or transfer title to certain property-such allegations relate to defendant's breach of the agreement, not the validity of the agreement itself, and are insufficient to raise a question of fact as to any undisclosed intention on defendant's part not to perform the promises therein at the time the agreement was executed (see Colello v. Colello, supra at 858).

 

Finally, the record does not support plaintiff's contention that the agreement is unconscionable (see Domestic Relations Law ? ? 236[B][3][3]; Colello v. Colello, supra at 859-860; Lounsbury v. Lounsbury, 300 A.D.2d 812, 814 [2002] ). Considering all the provisions of the prenuptial agreement, we cannot say that it was so unfair "as to shock the conscience and confound the judgment of any [person] of common sense" (Lounsbury v. Lounsbury, supra at 814 [internal quotation marks and citations omitted] ).

 

Plaintiff's remaining contentions have been reviewed and found to be without merit.

 

ORDERED that the order is affirmed, without costs.

 

MERCURE, CARPINELLO, MUGGLIN and KANE, JJ., concur.

Posted by Brian D. Perskin at 9:43 PM | Permalink | Comments (0)

Most people have heard about prenuptial agreements, but far fewer are familiar with postnuptial agreements. Even if you have been married for many years, it's never too late to enter into an agreement that promotes domestic harmony and protects your union. In fact, veteran lawyers say the number of mid-marriage agreements has exploded in the past five years, perhaps as much as tenfold. There are many negative connotations attached to the world "postnup," as if it is admitting your relationship's defeat. It is less intimidating to look at the process as a communication tool and a "seatbelt" for your relationship in the case of death or divorce. Why? Bringing up the subject of a postnuptial agreement can be a great way to resolve underlying financial and communication issues that could be causing undue stress in your marriage. By opening up this line of discussion, you are well on your way to solving festering problems, which could strengthen your marriage. Here are a few reasons why a postnup (also referred to as post marriage agreements or simply marriage contracts) may be beneficial for your partnership:   You may have overlooked a prenuptial agreement and want to legally define your relationship in an agreement. Many couples got married in a time and place where discussion of marriage contracts was discouraged. Today this process is more common. Most state's laws applying to property distribution in the case of death and divorce are vague. The most responsible way to manage your partnership is to take control and make your own decisions. You may want to amend a prenuptial agreement you signed before marriage. Your financial circumstances change through inheritance, receipt stock options, sale of a business, etc. Perhaps one, or both of you, began your own business. One of you has children from a previous marriage that you want to allocate funds or property to. You or your spouse has an emotional need for security. Creating a postnuptial agreement can be used for reconciliation purposes (if you have had marital difficulties and decide to "give it another shot," a postnup can be used as a security blanket). When? Every couple should at least discuss the concept of a postnup. This process isn't limited to times of transition in your relationship. Create a deadline for yourself and commit to initiating a conversation about marriage contracts by that date. Make sure you set aside time for this discussion when you can both focus and there aren't other forms of tension or distraction lingering. Where? Where do you normally discuss topics important to your partnership, such as life goals, finances or family? Find or create a calm, neutral spot where you both will feel open, at ease and unpressured. Whether you're sitting on your living room sofa, taking an afternoon walk or having a quiet dinner, you'll want to create an environment where both of you are most comfortable - mentally and physically. How? Bringing up the topic of a postnuptial agreement can be a very sensitive subject, especially if the other person's automatic reaction is to think "divorce." It is obviously easier to bring up the topic if you already have a prenup in place, since the postnup is just a natural extension of that document. If you haven't discussed marriage contracts before, proceed as delicately as possible. Here are a few suggestions to get you started:   Approach the topic from a collaborative viewpoint. For example, if you or your spouse are a stay at home parent, focus on the need to address your respective contributions to the relationship. State your concerns in a straightforward fashion. Be sure to solicit your spouse's input and feedback. You should remain open-minded and be prepared to make compromises in the negotiation. A change of circumstances (financial or lifestyle) can present a good opportunity to bring up a postnup. Your attorney or financial planner could raise the issue in conjunction with your overall financial planning. Conversation Starters: "I believe that ours is an equal partnership and recently discovered the laws in our state don't reflect this philosophy. Maybe we should talk about creating a more personalized agreement about our marriage." "Now that I've quit my job to be a stay at home spouse, I feel that we need to discuss my value or worth in the relationship." "Now that I've inherited the family business, I'm concerned about what would happen in the case of death or even divorce. I need to be confident that the business stays in the family." "It's been awhile since we have discussed the financial status of our relationship. Can we set aside some time to really talk about money matters and discuss the option of creating a marriage agreement?" The Commitment Conversation: A useful guide to help you create your agreement. In an effort to help individuals and couples feel more comfortable in discussing the issues surrounding a postnup, we've created a guidebook called "The Commitment Conversation". Perhaps you or someone you know could use this incredibly supportive tool. Important Note: Even though postnups often serve the same purpose as prenups, some courts scrutinize postnups more carefully than prenups, sometimes holding them to a higher standard of fairness on the theory that the parties have less leverage in postnups than in prenups. Unlike prenups, there is no uniform act that applies to postnups. The general rule in this quickly emerging area, however, is to apply the same rules for all marriage contracts. Both you and your spouse should be represented by separate, independent counsel, who will advise you of any distinctions particular to your situation or where you live. In addition, you must provide full financial disclosure to each other. REMEMBER: Don't let a postnup fall to the bottom of your "to do" list. The discussions ignited through the process generally come up eventually. Getting to know your partner's position now on important issues can help head-off more difficult discussions during the marriage. If you can't talk about touchy matters, this is a warning sign that your marriage is in need of help. The foregoing is a brief outline of the chapter on "Internups: Just Between Us Married Folk" in PRENUPS FOR LOVERS by Arlene G. Dubin (Villard Books, a division of Random House, Inc., 2001). The chapter deals with why a postnup agreement may be good for you, and provides numerous examples of couples who have benefited, the legal implications of entering into a contract and how to bring up the topic. Click Here to Order Prenups for Lovers   Actions During Marriage How To Build an Equal Marriage   Organize Information About Your Partnership   How (and why) to Bring Up a Postnup   Creating A Postnuptial Agreement   Money and Marriage   Common Law Marriage Myths     Partnership Tips From The Pros   Tips for Talking   Mastering Communication   Revitalize Your Marriage   Celebrating Special Moments   Renewing Your Vows     Avoid the Marriage Pitfalls   Preventing Marriage Problems   Beware Of These Warning Signs

Posted by Brian D. Perskin at 3:02 PM | Permalink | Comments (0)

   Michael Strahan's hired the wrong lawyer to write his pre nup agreement.  His lawyer did such a bad job, that the agreement actually benefited his ex wife.  It seems to me that his divorce lawyer did not even read or understand the agreement that was written.  This does not surprise me.  Once a week new york divorce lawyers send me drafts of agreements and I am amazed by what I read.  Unfortunately, many people hire the wrong lawyers.  Choose a lawyer based on experience.

Michael Strahan will never recover from the financial devastation that his own lawyer caused by preparing his pre nup agreement.

Posted by Brian D. Perskin at 8:34 PM | Permalink | Comments (0)

Many people sign pre nups, however, most pre nups prepared by non lawyers or lawyers not familiar with matrimonial law prepare them wrong. Pre Marital or Post Marital Agreements

Continue reading "The law" »

Posted by Brian D. Perskin at 9:58 PM | Permalink | Comments (0)

All too often, women come into my office and tell me their wonderful future husband is requesting a pre nuptial agreement be signed before the marriage. Many pre nuptial agreements are fair and strait forward. However, some try to completely have the future couple from have completely separate financial lives. It is my opinion that a couple preparing a pre nuptial agreement in New York should.....

Continue reading "Be Careful Before You Sign..." »

Posted by Brian D. Perskin at 10:15 AM | Permalink | Comments (0)

In 1996 Four Days before the Kessler's married, the future Mrs. Kessler, executed a prenuptial agreement waiving all of her rights to her husbands property, including the right to get attorneys fees in the event of a divorce. When marital bliss fell apart in 2002, Mrs. Kessler wanted to renegotiate, however, her agreement provided that she could not even make a claim for attorney fees. The Appellate divison agreed with her, sometimes right wins over might.....See the opinion....

Continue reading "Are You Entitled to Attorneys Fees to Contest Your Pre Nup?" »

Posted by Brian D. Perskin at 9:08 PM | Permalink | Comments (0)

Prenuptial Agreements can protect against a potential divorce in New York.....

Continue reading "Why should I have a Prenuptial Agreement ?" »

Posted by Brian D. Perskin at 1:54 PM | Permalink | Comments (0)

If you have an asset or a degree that you want to protect then you need a pre nup...

Continue reading "Do I need a pre nup?" »

Posted by Brian D. Perskin at 8:55 PM | Permalink | Comments (0)

Waiver in a Prenup, What does it mean?

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Posted by Brian D. Perskin at 4:32 PM | Permalink | Comments (0)