CHALLENGING PRE-NUPTIAL AGREEMENTS
Common grounds for challenging a prenuptial agreement are:
(1) The agreement is unconscionable. If you are the spouse with more assets, your prenuptial agreement will less likely to be deemed unconscionable by a court if it provides something for your spouse in the event of divorce. For example, you might consider providing your spouse with a lump-sum distributive award that will increase with each successive year of marriage. This is especially important if you have substantial assets and your soon-to-be spouse has limited or no assets. For example, you might agree to pay your spouse $100,000 should you divorce within the first two years after marriage; $200,000 if you divorce in the third year of marriage, etc. (See Webb v. Webb (Sup Ct.) where the court upheld a prenuptial agreement in part because it provided for a large distributive award to be paid to the wife)
(2) The agreement is not clear;
(3) One spouse wasn’t represented;
(4) One spouse’s attorney recommended a particular attorney for the other spouse; lack of representation. (See Strong v. Dubin (1st Dept.) where the wife challenged a validity of the prenuptial agreement because the attorney who represented her was recommended by, and known by, her husband’s attorney. The court, however, rejected this argument noting that the wife did not have to use the recommended attorney and was free to choose her own. This case exemplifies the importance of each party having their own independent counsel to advice them);
(5) The agreement was signed under duress. It is important that both sides have ample time to review the agreement with their respective attorneys. A prenuptial agreement “presented at the altar” could be voided as executed under duress;
(6) Not all assets were revealed.
Statute of Limitations to Challenge the Validity of a Prenuptial Agreement
The statute of limitations to challenge the validity of a prenuptial agreement is 3 years from the date process is served (not filed) in the matrimonial action or proceeding or from the date one of the parties to the agreement dies. Therefore, even if you signed a prenuptial agreement 20 or 25 years earlier, your spouse will have three years from the date you serve him or her with the divorce papers to challenge the validity of the agreement. NY Dom Rel Law 250
(1) The agreement is unconscionable. If you are the spouse with more assets, your prenuptial agreement will less likely to be deemed unconscionable by a court if it provides something for your spouse in the event of divorce. For example, you might consider providing your spouse with a lump-sum distributive award that will increase with each successive year of marriage. This is especially important if you have substantial assets and your soon-to-be spouse has limited or no assets. For example, you might agree to pay your spouse $100,000 should you divorce within the first two years after marriage; $200,000 if you divorce in the third year of marriage, etc. (See Webb v. Webb (Sup Ct.) where the court upheld a prenuptial agreement in part because it provided for a large distributive award to be paid to the wife)
(2) The agreement is not clear;
(3) One spouse wasn’t represented;
(4) One spouse’s attorney recommended a particular attorney for the other spouse; lack of representation. (See Strong v. Dubin (1st Dept.) where the wife challenged a validity of the prenuptial agreement because the attorney who represented her was recommended by, and known by, her husband’s attorney. The court, however, rejected this argument noting that the wife did not have to use the recommended attorney and was free to choose her own. This case exemplifies the importance of each party having their own independent counsel to advice them);
(5) The agreement was signed under duress. It is important that both sides have ample time to review the agreement with their respective attorneys. A prenuptial agreement “presented at the altar” could be voided as executed under duress;
(6) Not all assets were revealed.
Statute of Limitations to Challenge the Validity of a Prenuptial Agreement
The statute of limitations to challenge the validity of a prenuptial agreement is 3 years from the date process is served (not filed) in the matrimonial action or proceeding or from the date one of the parties to the agreement dies. Therefore, even if you signed a prenuptial agreement 20 or 25 years earlier, your spouse will have three years from the date you serve him or her with the divorce papers to challenge the validity of the agreement. NY Dom Rel Law 250