How to attack a prenuptial agreement

The Uniform Premarital Agreement Act, has been adopted in about 26 states including Connecticut and New Jersey (but not New York). However, the act basically set forths the conditions upon which even a New York premarital agreement may be attacked or set aside. So all those New York billionaires who have been getting divorced and separated recently such as Henry Silverman and Ivana Trump, respectively, better listen up. So should anybody else who has, or is, contemplating getting a prenuptial agreement.
You can attack a prenuptial agreement (click here, here, here, and here) in New York if:
1) You did not voluntarily sign the agreement but in fact signed under duress or under threat that if you didn’t the other party wouldn’t marry you; the latter prong is more likely to be proven the closer the actual marriage was to the signing of the agreement. So, in other words, if you signed a day before the wedding, or even a week before, it might be rebuttable proof that there was some form of duress.
2) The agreement was unreasonable or unconscionable when it was executed. So let’s say Ivana Trump’s fourth husband Rossano Rubicondi was given a prenup to sign a month before the wedding. Let’s say that, for conversation’s sake, Mr. Rubicondi is, for all practical purposes, broke and was broke at the time of the wedding. Now, let’s say that Ivana Trump is a multi-millionaire or even a billionaire. And the agreement calls for Mr. Rubicondi to get, say $500,000 lump sum in the event of a divorce. That is an unenforceable agreement. First of all it is arguably an unconscionably low figure when you consider the fact that $500K is just a blip when you are worth billions of dollars. And second of all, it sets divorce as a condition or as consideration for a lump sum payout.
3) The party against whom enforcement is sought did not fully disclose their assets. Okay, let’s say that in the Ivana Case she told Mr. Rubicondi, her fourth husband, that she only owns the house in Connecticut, and a few million dollars on the bank. In fact, she owned considerably more. She may have owned five houses, a hotel in Vegas, a yacht, things like that. Then, she did not fully disclose her assets, and any agreement that Mr. Rubucondi entered into with her, would arguable not be enforceable – if he did not waive in writing any right to full disclosure.
4) The agreement is not in writing. As a general rule, prenuptial agreements must be in writing and signed by both parties and acknowledged in the way a deed is to be acknowledged in order to be enforced. You cannot walk into court and say you had an oral agreement, or that the agreement had only one partie’s signature on it. That is not a prenup. I mean, it is possible that it may be enforced under some circumstances, but I wouldn’t bank on it.
5) It was not witnessed by third parties. It is better if the signing was witnessed by a third party, or videotaped (this probably is not a deal breaker, but it could be argued that….)
6) One of the parties did not have capacity to enter a contract. Both parties must have capacity to enter into the contract. You can’t have a party that was drunk, drugged, crazy or otherwise incapacitated. One of the fundamental rules of contract law is that all parties to the contract must have “capacity” to enter into the contract.
But I should warn you. The New York courts recently upheld a prenup that an American woman signed in Germany when she purported to marry a german man. The prenup was in GERMAN and the woman did not speak German. There was a lawyer for the husband that read to her what the prenup said. She signed it. The court REFUSED TO SET IT ASIDE. So take everything I said about attacking a prenup with a grain of salt. Remember that New York technically never adopted the Uniform Premarital Agreement Act.