PRENUPTIAL AGREEMENT & POSTNUPTIAL AGREEMENT ENFORCEMENT
THE NEW YORK COURTS MAY CHOOSE NOT TO ENFORCE A PROVISION WAIVING ATTORNEYS FEES IN A POSTNUPTIAL AGREEMENT. WHAT IS THE IMPACT ON PRENUPTIAL AGREEMENTS?
DIVORCE & FAMILY LAWYER NASSAU COUNTY NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that parties to a postnuptial agreement must weigh potential public policy considerations when drafting a postnuptial agreement.
In a recent case decided on July 18, 2018, the Appellate Division, Second Judicial Department refused to enforce a provision in a 1988 postnuptial agreement that provided for a reciprocal waiver of counsel fees if the parties were unable or unwilling to continue their marriage. In a New York divorce case, the Court has broad discretion in awarding attorney’s fees based upon the financial situations of the respective parties, as justice may require. The Appellate Court found this to be an overriding public policy concern where there was a disparity in the financial situations of the parties. What I am taking from the case, is that absent an award of counsel fees, the financially disadvantaged party would not have been able to have or afford representation during the divorce case or prosecute the appeal. Accordingly, if an unfair advantage in a divorce would result from the existence of a wide disparity of financial resources between the parties, the Court will not enforce burdensome terms in a postnuptial agreement. In my opinion, this would also apply to prenuptial agreements. It is important to avoid drafting terms while run afoul of public policy. What has become commonplace is the situation where a prenuptial agreement is sought where a citizen is marrying an immigrant without employment privileges in the United States. In that situation, it is my opinion that a maintenance waiver provision in a prenuptial agreement may also be unenforceable as against public policy.
As far as I know, no prenuptial, postnuptial, separation agreement, or divorce stipulation that I have ever participated in drafting has ever been set aside by a Court. Nor, to my knowledge, has any Court ever refused to enforce any prenuptial, postnuptial, separation or divorce stipulation that I have drafted, individually, or in conjunction with another attorney (who represents the other party).
I take great pride in drafting enforceable agreements. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island law practice for over 30 years.
Feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at email@example.com or by phone at
My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.
Written by: H. MICHAEL STERN, ESQ., Divorce & Family Lawyer Nassau County NY