New York court rules deficiency in prenup execution can be addressed at later date

Prenuptial agreements are a very valuable tool in planning for marriage. When properly drafted and executed, these agreements can be financial lifesavers. Because of their importance, state law requires both parties to acknowledge the agreement both orally and in writing in the presence of a notary or other authorized person. But what if this condition isn't met?

Some New York appeals panels have said that failure to meet these requirements automatically invalidates a prenuptial agreement, while others have held the deficiency can be addressed if both parties acknowledge the agreement at a later date. Last month the Appellate Division, Fourth Department, took the latter position, stating that an affidavit submitted at a later date may raise factual issues about the acknowledgement for a judge or jury to decide.

The ruling arises from a case in which a woman going through divorce sought to have a prenuptial agreement declared invalid, since the husband never orally acknowledged the agreement. The husband subsequently submitted an affidavit from a notary who testified to witnessing the husband's oral acknowledgement of the agreement.

The decision is in accord with previous decisions by the Second Department, but not with precedent from the First Department. The wife had 30 days from the date of that decision to appeal.

Among the other requirements for prenuptial agreements to be valid are that the agreement be in writing, that it be executed voluntarily, that full and fair disclosure be provided at the time of execution, and that the agreement not be unconscionable.

It is important to work with a knowledgeable attorney in drafting a prenuptial agreement. Doing so will ensure that all legal requirements are met and that the agreement effectively achieves its intended purposes.

Source: Thomson Reuters News & Insight, "Problematic prenups can be fixed with affidavit," Dan Wiessner, June 19, 2012

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