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Appeals Court Allows Wife To Challenge Attorney’s Fee Waiver in Prenuptial Agreement

divorce attorneys on Long IslandIn a case of first impression, an appeals court sitting in New York County, has allowed a non-monied spouse to bring a challenge to set aside what is a standard clause in most prenuptial agreements where each of the parties to the agreement waives claims to have the other party pay their attorney’s fee. This Appellate Division (the appeals court) decision overruled a Supreme Court decision which had prevented the wife from bringing an application to have her husband pay her attorneys’ fees.

Attorneys’ Fees Are A Trial Issue

The Appellate Court stated in its decision, “in order to ensure a level playing field, the question of the validity of the counsel fee provision for the non-child related issues in the parties’ agreement should be considered at trial.” The Appellate Court went on to state, “the great disparity between the parties’ finances, plaintiff’s request for attorney’s fees beyond those incurred for child related issues is an issue appropriate to leave for trial.”

In her suit, the wife challenged the spousal maintenance provisions of the prenuptial agreement, wherein she alleged those provisions were “presently unconscionable in terms of plaintiff’s current needs, expenses and income.” The lower court judge had said the issue of spousal maintenance could be considered at trial but the attorney’s fees issue for litigating the case were precluded by a waiver clause in the prenuptial agreement.

Pressured Into Signing the Agreement?

The Appeals Court ruling rejected the wife’s claims she had been pressured into signing the prenuptial agreement. The court stated, “the record is clear that this agreement was negotiated over approximately four weeks.”


Prenuptial agreements involve many significant terms. Those entering into prenuptial agreements should hire experienced attorneys to represent them and should spend a reasonable amount of time negotiating the agreement prior to the time of the marriage.divorce attorney on Long Island

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