Prenuptial agreements are becoming more common in marriages. This is especially true in second marriages. Individuals who have gone through difficult divorces in their first marriage are more likely to desire to have a prenuptial agreement to simplify matters should they divorce in their second or third marriages.
Form Documents and Internet Prenuptial Forms
There are numerous forms available in form books and on a variety of websites on the internet with regard to the preparation by individuals of their own prenuptial agreements without retaining counsel. Many of these forms found on the internet are uniform documents which claim to be valid in all states. Individuals taking this route expose themselves to the risk the document they execute may not be valid.
Prenuptial Agreements in New York
For a prenuptial agreement to be declared invalid in the State of New York, one party must show to a court the agreement was a product of fraud, duress, or another type of inequitable conduct. Courts also look into issues concerning overreaching when determining whether a prenuptial agreement is valid. Courts seek to review whether prenuptial agreements were fair and reasonable at the time they were executed.
Burden of Proof in Setting Aside a Prenuptial Agreement
The party to the marriage who seeks to set aside the prenuptial agreement has the burden of proof to demonstrate the facts in support of his or her allegations the agreement should be set aside due to fraud, duress or overreaching.
Unconscionability
Under the theory of unconscionability a court will set aside a prenuptial agreement that is so unfair no honest and fair individual would accept this agreement. Courts also will set aside agreements they believe shock the conscience with regard to their terms. The issue of what will shock a court’s conscience is at this time not completely clear.
Execution of Documents on the Eve of Weddings
The fact that a prenuptial agreement is executed shortly before a wedding ceremony takes place is not, in and of itself, a valid reason to set the agreement aside. In situations where one party is represented by an attorney and the other party is not, will not, in and of itself, be sufficient to set aside a prenuptial agreement.
The best way to ascertain a prenuptial agreement will not be set aside is for each of the parties to be represented by competent counsel and the prenuptial agreement should be the result of negotiations. The parties should only execute the agreement after it is fully explained by each of the parties’ respective attorneys.
