Here are some factors to consider while entering into a prenuptial agreement if you are negotiating the agreement out of the United States or abroad but wish to eventually enforce it in New York State.

Many people ask whether a foreign prenuptial agreement will hold up in other states. A particular concern here is what type of prenuptial agreement will hold up in New York. In general, and this is not legal advice, New York will enforce foreign prenuptial agreement if it is acknowledged in a manner prescribed for the filing of a deed, if it was enforceable in the country where it was entered, if due process is not violated, if it was without overreaching, if it was not made under duress,  or if any other public policy is not violated. That said, it is discretionary within the courts to determine what contracts or what divorce judgements they will enforce, and what they will not enforce, so it is not a guarantee that a foreign divorce judgment, or a foreign prenuptial agreement will be automatically enforced in New York. 

In that regard, the New York courts, in general, will uphold prenuptial agreements for the most part if they are executed in the manner described above and like fairness as defined above. 

A very important New York case to consider in this context, or in any context involving a prenuptial agreement, is Gottlieb versus Gottlieb, published in the NY Law Journal (NYLG January 29, 2016, First Department, State of New York which upheld an Agreement that looked one sided. In the case of Gottlieb the court discussed the New York law contained in DRL section 236 b(3) as it applies to prenuptial agreements and the court held that prenuptial agreements executed properly will be deemed binding as to equitable distribution of property even if the agreement may not be deemed fair by ordinary measures, so long as the parties knowingly entered into the prenuptial agreement, had legal advice, and was not obtained by duress and overreaching.  However, this might vary from Judge to Judge.

As to the provisions of the prenuptial agreement as to spousal support (alimony) or maintenance, a slightly different standard applies since maintenance in spousal support and child support or more closely scrutinized by the courts. The rule of law, as to maintenance and support, is that the award must be fair and reasonable at the time that it was made, and not unconscionable upon the entry of a final divorce judgment. What is important to note here is that the Gottlieb court in New York county said that with respect to unconscionability, that even though the prospective bride and groom owe a fiduciary duty to the other side not to be overreaching, nevertheless the agreement is effective even if it is a one-sided agreement so long as there was no duress, overreaching and was knowingly executed. This was not a unanimous decision and some of the judges concurred but with the exception that they found that couples that are not yet married do not owe each other a fiduciary relationship. 

That said, there are other Counties and judicial Departments that more strongly adhere to the notion that fairness of the agreement is important. For instance, in the Second Department, in the case of Petracca v Petracca, 101 AD2nd 695, the court took the position that the Prenuptial Agreement was not enforceable in that situation, where they excepted the wife’s position that she was bullied into signing the agreement.

The existence of multiple residences of the parties to the prenuptial agreement springs an interesting inquiry as to whether all the multiple states at issue will enforce an otherwise enforceable prenuptial agreement entered in just one of the multiple states of residence.

This is where the Uniform Prenuptial Agreement Act comes into play, if at all. This Act deals with the interplay between the laws on prenuptial Agreements across the United States. New York has not adopted this Act, but 29 other States have. Though many states have adopted this set of laws, New York has departures from it that will impact parties to a prenuptial agreement if the parties travel from state to state so it is important to consult with attorneys in all the states of residence prior to deciding where to enforce your agreement.

By:  Lisa Beth Older, Esq.

Your New York Divorce Lawyer located in Manhattan.

This is not legal advice and is informational only.  Always consult with an independent counsel of your choice before engaging in the drafting of any legal document.

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