Unfortunately, many Long Island marriages end in divorce, at which time a prenuptial agreement may become a heavy burden for one of the spouses. The burdened spouse is almost certain to ask if the prenuptial agreement can be declared invalid. The answer in New York State is “sometimes.”
The formalities
In order to be enforceable, a prenuptial agreement must be signed by both parties before the wedding. The agreement must also be signed by two witnesses over the age of 21.
Failure to follow any of these formal requirements will cause a judge to declare the agreement to be invalid. Other grounds may also cause a judge to refuse to enforce the agreement.
Failure to have separate attorneys
Each party to a prenuptial agreement must be given the opportunity to retain a separate attorney and have that attorney review the agreement before it is signed. If the parties did not have separate attorneys review the agreement, a judge may be more likely to scrutinize the document for unfair or oppressive terms.
Disclosure of financial circumstances
Both parties to a prenuptial agreement must make full and fair disclosure of their assets and liabilities before the agreement is signed. A party who fails to make a full and fair disclosure of assets and liabilities may not be able to enforce the agreement against the other party.
Fraud
Likewise, a person who makes a material factual misrepresentation to the other party is not likely to be able to enforce the agreement against that party. Fraud in these cases can take many forms, including a promise of a future action, ownership of a particular asset, interest in a business, or a past health issue that is not fully resolved.
Coercion and duress
Neither party to a prenuptial agreement can use any form of coercion or threat to force the other party to sign the agreement. Coercion can be a threat to cancel the wedding or take some similar action if the other party refuses to sign the prenuptial agreement.
Unfair and inequitable
If the agreement favors one party over another, for example by giving most of the marital assets to one party, the court may well refuse to enforce the agreement as written.
Convincing a judge to declare a premarital agreement to be unenforceable is a formidable task and should not be undertaken without the assistance of an experienced divorce attorney.
