Can My Prenuptial Agreement be Challenged?

It is not uncommon for persons contemplating marriage to enter into a prenuptial agreement, especially if one or both of the persons getting married have significant assets they are looking to protect. A person may want to enter into a prenuptial agreement to protect personal wealth and/or protect a business interest. It is often practical to work out each person’s interest in an asset before the marriage and matters become more complicated.

In instances where a married couple getting divorced have a duly executed prenuptial agreement in place, the terms of the prenuptial agreement would determine how assets are divided and the payment or waiver of spousal maintenance. However, in some instances, a spouse may seek to set aside the prenuptial agreement.

In New York, it is difficult to set aside an agreement as there is the presumption that the agreement is valid and controlling. There is a very high burden to set aside the prenuptial agreement and the burden is on the person looking to void the agreement. In order to set aside an agreement there are certain factors that must be proved. It must be proved that there was coercion, duress, fraud, overreaching resulting in manifest unfairness, inequitable conduct or that the agreement was unconscionable.

In order to protect yourself against your prenuptial agreement being challenged in the future, it is essential that each party be represented by competent counsel of their choosing, that there is financial disclosure of assets and liabilities, and that there are negotiations between the parties. It is critical that there is no concealment or misrepresentation of assets. It is always important to leave yourself enough time to negotiate, draft and execute your prenuptial agreement, and it is best that you avoid doing so on the eve of your marriage to prevent any claims of duress.