Wife Tries to Set Aside a Prenuptial Agreement

June 25, 2014 By

A husband and wife entered into a prenuptial agreement several weeks prior to their marriage. The wife has brought a proceeding to set aside the prenuptial agreement based on coercion and duress. In her moving papers, she advised the court she trusted her husband and signed the agreement because he told her to do so. She also claimed she didn’t understand what she signed because no one explained the agreement to her. In addition, she claimed she could not read or write in the English language well enough to understand the legalese contained in the prenuptial agreement.

Wife Represented by Counsel

The attorney for the husband argued the wife had misrepresented what transpired. To start with, she was represented by an attorney of her choosing. Her attorney testified at a hearing that if he had felt the wife did not understand the agreement or understand him, he would have hired an interpreter. All of his negotiations and discussions with her were in the English language. He had no reason to believe she did not understand him when they were talking together. And he believed she understood the agreement that was executed.

The Court’s Decision

Supreme Court Justice Jeffrey Sunshine sitting in a divorce part in Kings County found the wife’s allegations that she did not understand English, “patently incredible.” He stated in his decision she obtained a degree in English while living in Russia. She taught Russians to speak English while living in Russia and also taught Russians to speak English while living in the United States. The wife had executed the agreement at its end. She had sufficient opportunity to meet with her attorney. There was no evidence she was defrauded into signing the prenuptial agreement or duress was used in motivating her to execute the prenuptial agreement. Justice Sunshine found no reason to set aside the prenuptial agreement.

Conclusion

This is an example of a wife trying to convince a court to set aside a prenuptial agreement based on nonsensical arguments. The purpose of prenuptial agreements is to lock in the parties’ financial responsibilities in order to avoid litigation at the time of separation or the death of one of the parties. In this case, it looks like the wife decided she was not satisfied with what she was getting in the prenuptial agreement so she took a shot at setting it aside. Unfortunately for her she had no valid reason to set aside the prenuptial agreement.assistance for fathers in divorce litigation

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What You Need To Know About Prenuptial Agreements

April 10, 2014 By

Prenuptial agreements, which are sometimes referred to as antenuptial agreements, are designed to set forth in a written contract what will happen concerning the division of property and spousal support payments in the event of divorce. Prenuptial agreements also deal with the rights each spouse has to the other spouse’s estate in the event of death.

One thing that is certain concerning prenuptial agreements is they have nothing to do with the romance that leads up to marriage. Sometimes bringing up a discussion of a prenuptial agreement can have the impact of stopping the marriage from moving forward dead in its tracks.

Prenuptial Agreements and Divorce

Prenuptial agreements can help the individuals who enter into a marriage avoid, in the event of a breakdown of the marital relationship, a nasty, difficult, expensive divorce. Prenuptial agreements should be drafted a significant period of time before the date of marriage. A common problem clients face when they call a lawyer a week or so before they plan on getting married is that it usually takes weeks to work out the details, negotiations, and terminology in a prenuptial agreement. Parties who seek to have a prenuptial agreement drafted by attorneys should consider doing it three to six months in advance of their getting married.

Prenuptial Agreements and Disclosure

One of the first steps necessary before entering into a prenuptial agreement is the disclosure as to what each party’s assets are and what each party’s incomes are. Individuals entering into a prenuptial agreement must make a knowing, intelligent decision to enter into these agreements. An individual cannot make a reasonable, intelligent decision if they don’t know what the other party’s assets and income are at the time of the execution of the agreement.

Prenuptial agreements should not be thought of as a document prepared in the anticipation of a divorce. Prenuptial agreements simply lay out each party’s rights and obligations in the event of a divorce or death of one of the spouses. Unfortunately, the divorce rates throughout the United States are very high. In many areas, the divorce rate runs close to 50%. Therefore, putting each of the party’s cards on the table before they enter into the marriage and having an agreement showing what their cards will be when they leave the marriage involves planning for the possibility of a problem while the parties hope the problem never occurs.

Prenuptial Agreements and Obligations to Support Children

Prenuptial agreements generally do not deal with the financial obligations each of the parties has to support children who are born after the execution of the agreement. It is generally against public policy for prenuptial agreements to interfere with each of the party’s financial obligations to children born during the course of the marriage.

There are a variety of pros and cons concerning prenuptial agreements. Individuals going into their first marriage often have a hesitancy to be involved in this type of planning. However, individuals who have been married and divorced, usually want to have prenuptial agreements in their second or third marriages.

Elliot Schlissel is a divorce lawyer with more than 45 years of experience representing individuals in divorce actions. He has extensive experience in protecting father’s rights and helping fathers obtain custody and/or visitation with their children. The office offers free consultations and its phones are monitored seven days a week to deal with emergency situations.

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Do You Need a Prenuptial Agreement? – Part II

March 18, 2014 By

father's rights attorneyThe following is a list of a variety of circumstances in which prenuptial agreements may be appropriate:

 

1.     When either of the parties to the marriage is a lawyer, doctor, has a professional degree or has an     interest in a business.

2.     When either of the parties has assets that he or she seeks to maintain as separate property and not become part of the martial estate.

3.     When one of the parties to the marriage has significant debts. The other party may want to avoid being drawn into these financial obligations.

4.     When either of the parties have children from a prior relationship or previous marriage.

5.     When the present income between the parties is significantly different or one of the parties to the marriage has much greater earning potential than the other.

6.     When one of the parties anticipates his or her future financial circumstances will be changed related to future events.

7.     When there is a significant age disparity between the parties to the marriage.

The Prenuptial Agreement – The Minimum Requirements

There are certain minimum requirements for prenuptial agreements that should be met. To start with, it should not be done at the last minute. The parties should have a reasonable opportunity to meet with each of their attorneys to discuss this agreement before it is executed. The agreement must be in writing executed by each of the parties to the agreement prior to the marriage. The agreement should contain an acknowledgment at the end and the parties’ signatures should be notarized. The agreement must be fair and reasonable. This is particularly important in cases where the parties have significantly different financial circumstances to show that the more affluent party did not take advantage of the lesser affluent party in the prenuptial agreement. If a judge feels that a prenuptial agreement is unconscionable, which means extremely unfair, they will set the prenuptial agreement aside.

Some prenuptial agreements contain a clause in it that terminates the agreement after a period of years. This is inserted in prenuptial agreements to take into consideration when marriages become longer term marriages the parties may no longer desire the agreement to remain in effect.

Conclusion

helping husbandsPrenuptial agreements simplify divorces, protect financial interests of children from prior relationships and can be utilized to protect property and income. They also have the effect of simplifying divorce litigation.

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Do You Need a Prenuptial Agreement? – Part I

March 11, 2014 By

fathers rights attorneysIf marriages are supposed to be entered into based on true love then what place does a prenuptial agreement have in the marriage? Raising the issue of prenuptial agreement can create a ticklish situation. However, when the two people who are marrying have significantly different financial circumstances a prenuptial agreement may be appropriate. Prenuptial agreements also should be considered to be entered into when the marriage is between individuals of different ages.

In cases where there were children from prior relationships, one of the parties to the marriage may seek to leave a portion of his or her assets to those children in a will. The prenuptial agreement also may be necessary to waive spousal rights of election (the spouse’s right to inherit from the other spouse’s estate).

High Divorce Rates

The divorce rates in New York are close to 50%. This means it is almost even money a marriage will fail. When the parties have a prenuptial agreement it helps simplify the divorce proceedings. A prenuptial agreement in this situation can save both of the parties to the marriage expenses related to divorce litigation and reduce the stress and aggravation related to the divorce.

Prenuptial Agreements and Financial Issues

support for husbands in divorceSometimes prenuptial agreements are designed to deal with financial arrangements between the parties during the course of their marriage. Prenuptial agreements can set aside property as separate property which is not to be included in either the marital estate upon death of one of the parties to the marriage or in a divorce proceeding. Prenuptial agreements can also deal with issues of spousal maintenance (alimony) should the parties get divorced.

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Unfair Prenuptial Agreement Thrown Out

August 19, 2013 By

family law attorneysE.N. entered into a prenuptial agreement with A.N.  E.N., a woman, had been a receptionist in a law firm that handled divorce cases. The prenuptial agreement was drafted by her husband’s lawyer. She had virtually no impact in the agreement. She hadn’t read the final draft of the agreement.

Acting Supreme Court Justice Victor Alfieri, Jr., sitting in Rockland County, held “the agreement was completely one-sided.” “Plaintiff thought the purpose of the prenuptial agreement was to protect defendants’ individual and joint bank accounts. There was never any discussion between the two of them about plaintiff waiving her rights to spousal maintenance, insurance benefits, his pension or his estate should he predecease her.” The Judge went further to state “plaintiff did not see a copy of the agreement prior to signing it, nor did defendant’s attorney explain it to her prior to her signing it.”

History of Relationship

A.N and E.N met in 1994. Their engagement lasted 2 years. A.N. insisted on a prenuptial agreement prior to getting married to E.N. E.N. thought the agreement just would deal with waiving her rights to A.N.’s bank accounts which he held jointly with his mother.

A.N. had his attorney draft the prenuptial agreement. Although E.N. agreed to sign the agreement without reading it based on A.N.’s statements he would not marry her unless she signed the agreement.

Divorce Proceedings

A.N. filed a lawsuit against E.N.  E.N. brought an action to set aside the prenuptial agreement. The Judge found that E.N. had “no input” in the prenuptial agreement’s terms. The Judge also pointed out in his decision she was not represented by counsel during the negotiations and the execution of the agreement. In the end, the Judge found, based on all the facts in the case, the prenuptial agreement should be set aside because it was unconscionable, involved over-reaching and duress.

Conclusion

Both parties should always be represented by a family law attorney prior to entering into a prenuptial agreement. There should also be full disclosure of assets, debts and a full explanation of the terms and conditions of the agreement by the attorneys for each of the parties prior to their executing the agreement.father's rights advocate

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