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Antenuptial Agreements & the New Standard

MATRIMONIAL LITIGATION

 by Ronald A. Phillips, Esq.

Fellow, American Academy of Matrimonial Lawyers

Antenuptial Agreements & the New Standard

Antenuptial agreements became as "permissible" as separation agreements with the advent of the equitable distribution law on July 19, 1980. (DRL § 236 Part B 3., Agreement of the parties). Prior to that, it was not wise to waive support (without a fault divorce), and property belonged to the title owner. As a result, far fewer agreements were drawn. However, those that were executed and tested in court led to a line of cases (in this century) that stood for the proposition that there was no fiduciary relationship, the parties to such an agreement were in the same position as parties to an ordinary business contract, and it was almost impossible to set such agreements aside.

In MATTER OF GREIFF, 92 NY2d 341, the Court of Appeals discusses the history of antenuptial agreements in the State of New York. The court indicated that at a time, when women were seen as less than equal to men, it was thought that "man 'naturally' had a disproportionate influence over the woman he was to marry (Graham, supra, at 580; see, 3 Lindey on Separation Agreements and Antenuptial Contracts § 90.03). This was the lesson of GRAHAM and put a heavy burden on the proponent of an Antenuptial Agreement to prove it was fair and not the result of fraud or undue influence (See GRAHAM v GRAHAM, 143 NY 573, 38 NE2d 722 (1894]). The pendulum swung the other way with PHILLIPS v PHILLIPS, 293 NY 483, 58 NE2d 504. A review of the cases after PHILLIPS, supra., indicates that it became almost impossible for a party to set aside an antenuptial agreement. PHILLIPS progeny made antenuptial agreements arms length transactions and the burden of proof to set one aside almost insurmountable. The Court of Appeals itself used generalities that furthered this proposition.

In MATTER OF SUNSHINE, 40 NY2d 875, 389 NYS2d 344, the Court of Appeals said:

" The rule with respect to antenuptial agreements in this State places no special evidentiary or other burden on the party to the agreement, or one on his or her behalf, who seeks to sustain the agreement (see Matter of Davis, 20 NY2d 70, 76; Matter of Phillips, 293 NY 483, 491)."

Basically, the court indicated that the parties enjoyed to same status and it was therefore incumbent on the party challenging the agreement to come forward with unequivocal proof of fraud, duress, or undue influence. As we will see, unless some fiduciary duty is found to exist, this burden was almost impossible to meet. In MATTER OF DAVIS, 20 NY 2d 70, 281 NYS2d 767, the Court of Appeals stated:

" The cases of Pierce v. Pierce (71 N. Y. 154) and Graham v. Graham (143 N. Y. 573), relied upon by appellant, are distinguishable on the same ground stated in Matter of Liberman (4 A D 2d 512, affd. without opn. 5 NY2d 719) that in each there was proof of fraud and deception on the part of the husband which induced the wife to enter into the prenuptial agreement. In Liberman and in Matter of Phillips (293 N. Y. 483, 490, 491) it was pointed out that section 18 of the Decedent Estate Law evinced a public policy adverse to a presumption that antenuptial agreements were invalid unless proven otherwise. In Phillips, we said: " To ascribe to such an agreement inherent fraud without regard to the fairness of its provisions and the reasonableness of the purpose to be accomplished or to the circumstances in which the agreement was proposed, is not, we think, in line with such public policy. "

It was not necessary to the validity of this agreement that decedent should have disclosed to appellant the extent of his wealth. Referring to the argument for appellant that she was relinquishing an expectancy of greater value than the expectancy relinquished to her by appellant, the Surrogate said: "What this argument overlooks is that a decision based upon the values of expectancies involves risk, and the respondent was not willing to risk her children's interest in their patrimony. She was aware of the differences in ages and if she had placed much trust in her longer life expectancy, she would not have insisted upon an agreement to preserve her estate from any claim of her husband. Realizing the uncertainty, she was unwilling to gamble with money which she felt should go to her children. In seeking to protect her estate against any lawful claim by her husband, she was willing to give him like protection."

One might compare MATTER OF PHILLIPS, 293 NY 483, 58 NE2d 504, to BODEN v BODEN, 42 NY2d 210, 397 NYS2d 701. What BODEN was to child support, MATTER OF PHILLIPS was to antenuptial agreements. As the lower courts interpretation of BODEN required a BRESCIA v FITTS, 56 NY2d 132, 451 NYS2d 68, the lower court's interpretation of PHILLIPS (also MATTER OF SUNSHINE, supra., and MATTER OF DAVIS, supra.) led to the Court of Appeals deciding MATTER OF GREIFF, 92 NY2d 341, on October 27, 1998. The lower courts interpreted BODEN as an absolute; one required an "unforeseen and unanticipated change in circumstances" to modify child support. The interpretation became so rigid that if a comet hit a completely unique factory in New York totally destroying it and leading to a parent being unable to support his/her children, the courts would seem to say it should have been both anticipated and foreseen; after all, it isn't the first comet to hit the earth! The courts seemed to find that everything should have been both anticipated and foreseen. After PHILLIPS, it was almost impossible to show fraud, duress, or undue influence with respect to antenuptial agreements. As BRESCIA v FITTS reinterpreted the proposition that BODEN stands for, MATTER OF GREIFF reinterprets the proposition that MATTER OF PHILLIPS stands for; it indicates that one must look to all of the underlying facts.

The appellate courts certainly followed PHILLIPS. The Appellate Division, First Department in BRASSEY v BRASSEY, 154 A.D.2D 293, stated as follows:

The law is established that "[a] duly executed antenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise, and is not, regardless of the fairness and reasonableness of the agreement, burdened <*pg.295> by a presumption of fraud arising from the subsequent confidential relationship of the parties" (Eckstein v Eckstein, 129 AD2d 552, 553; see also, Matter of Sunshine, 51 AD2d 326, affd 40 NY2d 875; Matter of Zach, 144 AD2d 19). As this court has recently declared, there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties and that, therefore, a high order of evidence is necessary in order to overcome that presumption (Matter of Zach, supra, at 21). Moreover, a party endeavoring to invalidate an antenuptial agreement "has the burden of coming forward with evidence showing fraud, 'but, in the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed' " (Matter of Zach, supra, at 21).

An examination of the record herein does not demonstrate sufficient evidence of fraud or of any other action on defendant's part to overcome the presumption of legality of the antenuptial agreement. Clearly, conclusory allegations of fraud or concealment are inadequate to raise a question of fact concerning the validity of such an agreement as would preclude summary judgment. The agreement is plain on its face and gives no indication of unconscionability or makes any representations concerning the parties' finances, nor does plaintiff allege that it contains any terms which were incomprehensible to her. Plaintiff initialed each page of the document when she executed and signed it. She acknowledges that she is fairly well educated. Further, while the failure of a party to be represented by counsel is a factor to consider in determining the validity of an agreement, "that fact, without more, does not establish overreaching or require an automatic nullification of the agreement" (Juliani v Juliani, 143 AD2d 72, 74). In opposing summary judgment, once defendant had made the requisite showing, it was incumbent upon plaintiff to lay bare her proof and set forth sufficient evidence of a nonconclusory nature to create a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562). Since she has not done this, defendant is entitled to partial summary judgment with respect to the validity of the antenuptial agreement.

The Appellate Division, Second Department utilized the same reasoning in GOLDFARB v GOLDFARB, 231 AD2d 491, 647 NYS2d 243, wherein the court stated:

An antenuptial agreement is valid and enforceable if it is in writing, subscribed by the parties, and acknowledged or proven in a manner required to record a deed (see, Domestic Relations Law § 236 [B] [3]). A duly executed agreement is provided the same presumption of legality as any other contract (see, Forsberg v Forsberg, 219 AD2d 615; Eckstein v Eckstein, 129 AD2d 552, 553; see also, General Obligations Law § 3-303). The record indicates that the antenuptial agreement was signed by both parties and formally acknowledged. Thus, the agreement is presumed to be valid and the burden is upon the defendant to produce evidence to the contrary (see, Panossian v Panossian, 172 AD2d 811, 812). This the defendant failed to do. Therefore, the Supreme Court properly granted the plaintiff's cross motion for an order declaring that the antenuptial agreement is valid and enforceable.

The Appellate Division, Third Department followed the general rule too. In MATTER OF GARBADE, 221 AD2d 844, 633 NYS2d 878, wherein the court stated:

We affirm. Fundamentally, "a duly executed antenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. It is presumed to be valid in the absence of fraud" (Matter of Sunshine, 51 AD2d 326, 327, affd 40 NY2d 875; see, Panossian v Panossian, 172 AD2d 811, 812; Brassey v Brassey, 154 AD2d 293, 294-295; Matter of Zach, 144 AD2d 19, 21). Moreover, the party attacking the validity of the agreement has the burden of coming forward with evidence of fraud, which, in the absence of facts from which concealment may reasonably be inferred, will not be presumed (see, Matter of Phillips, 293 NY 483, 490-491; Matter of Sunshine, supra, at 327-328; see also, Matter of Zach, supra). In light of that standard, even crediting every factual allegation advanced by respondent and drawing the most favorable inferences therefrom, we agree with Surrogate's Court that respondent has raised no legitimate triable issue as to whether the prenuptial agreement and, more to the point, respondent's waiver of her right to elect against decedent's estate was the product of fraud, misrepresentation, duress, imposition or undue influence.

Respondent presented evidence establishing at most that (1) it was decedent, and not she, who first raised the issue of a prenuptial agreement and requested that one be executed prior to the wedding, (2) the agreement was prepared by decedent's attorneys, at his request and in accordance with his direction, (3) the prenuptial agreement was executed only a few hours prior to the parties' wedding, (4) respondent did not seek or obtain independent legal counsel and the agreement was not read by her or to her before she signed it, (5) respondent was not specifically advised that the agreement provided for a waiver of her right to elect against decedent's will, and (6) respondent was not furnished with a copy of the agreement.

At the same time, it is uncontroverted that (1) respondent readily acceded to decedent's request that they enter into a prenuptial agreement and willingly signed the instrument because she did not want any of decedent's money or property, she only wanted to be his wife, (2) respondent was advised to obtain the services of independent counsel, (3) respondent was given an adequate opportunity to read the instrument before she signed it, and (4) prior to executing the prenuptial agreement, respondent was provided with detailed disclosure of decedent's $2.5 million net worth.

In our view, respondent has established nothing more than her own dereliction in failing to acquaint herself with the provisions of the agreement and to obtain the benefit of independent legal counsel. Although this dereliction may have caused her to be ignorant of the precise terms of the agreement, the fact remains that, absent fraud or other misconduct, parties are bound by their signatures (Pommer v Trustco Bank, 183 AD2d 976, 978, lv dismissed, lv denied 81 NY2d 758). Further, the absence of independent counsel will not of itself warrant setting aside the agreement (see, Panossian v Panossian, supra, at 813). There being no competent evidence of fraud, respondent has merely resorted to reliance upon a number of innocuous circumstances (such as the fact that the wedding date was changed from February 14 to February 2, 1990 to accommodate a Florida trip, that decedent's attorney did not finish drafting the agreement until shortly prior to the wedding and, incredibly, that the parties went out to lunch before going to sign the agreement) to fuel speculation that fraud was practiced upon her (see, Matter of Zach, 144 AD2d 19, 21, supra).

This one appears to go the farthest; not only did the wife lose, but the court indicated that she was it was her own fault. In the Appellate Division, Fourth Department the same litany appears in COSTANZA v COSTANZA, 199 AD2d 988, 608 NYS2d 132, wherein the court stated:

Supreme Court erred in setting aside the parties' prenuptial agreement. Plaintiff failed, as a matter of law, to meet her burden of proffering credible evidence to establish fraud, overreaching, concealment, misrepresentation or some form of deception on the part of defendant, as required in order to overcome the presumption of legality of the agreement (see, Matter of Phillips, 293 NY 483, 490-491; Panossian v Panossian, 172 AD2d 811, 812; Brassey v Brassey, 154 AD2d 293, 294-295; Eckstein v Eckstein, 129 AD2d 552, 553). Plaintiff was aware that she would be required to execute a prenuptial agreement as early as four years before the parties were married. When the agreement was presented to her, she consulted with two attorneys regarding the propriety of executing it. The record shows that it was not procured as a result of fraud, misrepresentation and concealment, nor was it the product of coercion and duress (see, Brassey v Brassey, supra, at 294-295).

It would appear that all of these cases treated an antenuptial as a business contract. The agreement really wasn't examined that closely, and unless some sort of fraud, duress, or undue influence could be very clearly demonstrated at the most preliminary stages, the courts really did look to the agreement to see just how the parties were treated.

What were the underlying facts in GREIFF that were so egregious as to cause a new interpretation in the law? 1 Prior to the marriage, the husband, Herman Greiff, had asked the wife, Helen Greiff, to move in with him. The court found that she had no financial resources of her own. She refused to move in with him unless he married her. He wanted a religious ceremony, she insisted upon a civil ceremony because it would insure that she would receive part of his estate in the event he predeceased her. The husband told her that he was a "wealthy man", she would be "well taken care of", and that she "would have nothing to worry about" because she would be provided for in his will.

Secretly, the husband had his attorney draft a " waiver of right of election" and a will wherein he left all his assets to his children; his wife was left with nothing. Approximately two months prior to the wedding, the husband stopped at his bank to sign documents. While at the bank, he told his would-be wife to sign the " waiver of right of election"; his explanation was that it was to ensure that her children would not be able to get the assets which he had left to his children by will. She signed at the bank. Subsequently, he signed the "waiver of right of election" at his attorney's office and simultaneously signed his will.

Approximately a month before the wedding, the husband-to-be brought his wife-to-be to his attorney's office under what was described as false pretenses. When she arrived, she was introduced to an attorney who told her he would act as her attorney. This attorney took her to a separate room, presented her with the antenuptial agreement, described it as a document to protect the husband's children. The court found that this attorney shared office space with the husband's attorney and was paid by the husband. The court found the wife to be emotionally upset and shaken by the events. The so-called independent lawyer also presented another document to the wife for her signature; it provided that the lawyer represented her and summarized the events surrounding the execution of the antenuptial agreement. The antenuptial agreement specifically indicated that the wife had chosen her own attorney and the attorney had explained the agreement to her.

The court also found that the wife couldn't have comprehended the agreement. The court found that she "had left high school without graduating nearly fifty (50) years before this time, and as [the husband] well knew, she had no business experience, had no contact with lawyers or legal documents during that time and, therefore, was wholly incapable of understanding the terms of the agreement".

As is usual with a change in the law, it results from atrocious facts; they were certainly present here. The antenuptial agreement's terms can be described as unfair and perhaps, even unconscionable. The unfairness resulted from fraud, duress, undue influence, and all of the traditional factors on which the courts determine to set aside marital (and premarital) agreements. Just about every possible impropriety was practiced upon the wife in this case. It resulted in a change of the law.

Many authorities commenting on this case have indicated their belief that this case represents a major change to the extent that the burden of proof with respect to antenuptial agreements has now shifted to the proponent of the agreement. They have indicated that most antenuptial agreements would appear unfair on their face since there is frequently a disparity in income. However, it is not the terms of the agreement themselves that led to the change in the law. It was the manner in which they were put into the agreement. First of all, in GREIFF, the court found that the one thing that the wife had insisted upon was that she be taken care of after the marriage and this had been taken away from her in the agreement. The court found that it was done by fraud and deceit. That she didn't have an independent attorney, although she was certainly advised that her attorney was representing her interests. She was mislead into signing documents under false pretenses. It was the fraud and deceit that was the major issue; not the terms of the agreement itself! In order for this to be clear, one must reexamine the classic case on unconscionability, CHRISTIAN v CHRISTIAN, 42 NY2d 63, 396 NYS2d 817. In CHRISTIAN, the husband was found to have manipulated the wife into executing a separation agreement wherein each party was to get one-half of the other's property. The husband's stock was worth approximately $200,000.00 while the wife's stock was worth approximately $800,000.00 to $900,000.00 dollars. This case was decided in 1977; that was a lot of money in 1977. The Court of Appeals, in Christian, reviewed what the lower court had done and then what the appellate court had done. The court of appeals in summarizing what the lower court had found stated in part as follows:

"The last paragraph of section "6" of the agreement was examined. Noting that the husband was aware that his stocks listed in the schedule were worth $200,000 while those of the wife had a value of $800,000 to $900,000, that the wife contended that she had no idea of the relative values of the securities, that the husband cleverly maneuvered the retention of the attorney who ostensibly represented the wife and drew the agreement, that neither party informed the attorney of the values of the stock being split, it was concluded that the husband's conduct in procuring the drafting of the agreement and in concealing from the attorney the details of the distribution of assets constituted such fraud as to vitiate the agreement completely.

The court went on to state with respect to the appellate findings:

The Appellate Division unanimously reversed, on the law and the facts, granted defendant husband's counterclaim for divorce and declared the last paragraph of provision "6" of the parties' agreement null and void. It was held that the record did not support Supreme Court's findings of fact to the effect that defendant was guilty of fraud or overreaching with regard to the formulation or signing of the agreement, that plaintiff failed to sustain her burden of proof as to her affirmative defense of fraud in the inducement. Insofar as the parties had lived separate and apart pursuant to the agreement, properly executed and filed, and adhered to its terms for more than a year, thus fulfilling the statutory requirements, defendant was held to be entitled to a decree of divorce. In the Appellate Division's view, the wife was not represented by an attorney acting solely in her interests and her knowledge of financial matters was not equal to that of her husband. In the light of these facts, the relative value of the listed securities to be divided and the high price plaintiff apparently was prevailed upon to pay for her husband's signature to the separation agreement, the last paragraph of provision "6" was held to be so unconscionable as to be unenforceable.

It was in this case where the now famous " reasonable man" first became famous. With respect to the reasonable man, the court stated:

"… over the years, an unconscionable bargain has been regarded as one " 'such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other' " (Hume v United States, 132 US 406, 411), the inequality being " 'so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense' " (Mandel v Liebman, 303 NY 88, 94). Unconscionable conduct is something of which equity takes cognizance, when warranted (see Weirfield Holding Corp. v Pless & Seeman, 257 NY 536; Graf v Hope Bldg. Corp., 254 NY 1, 4; Howard v Howard, 122 Vt 27; 27 Am Jur 2d, Equity, 24, pp 549-550; cf. 2 Pomeroy's Equity Jurisprudence [4th ed], 873, p 1804).

The two lower courts certainly seemed to believe that trading one-half of $200,000.00 for one-half of $800,000.00 to $900,000.00 was an " unconscionable bargain", based upon both courts exorcizing that particular paragraph. Yet, the case was remanded to determine whether there had been " unconscionable conduct". The "reasonable man" needed more facts; the only additional facts that would be developed relate to the conduct surrounding the execution of the agreement rather than the provisions themselves.

Also, one must remember that in CHRISTIAN, one is dealing with a separation agreement as compared to an antenuptial agreement. There is a fiduciary relationship based upon the marriage. The wife gave away property without knowing what it was worth. After the marriage, one must look upon a party as having an undefined, unvested, and contingent interest in all of the marital property when signing a separation agreement. While one may waive something that they have no interest in without disclosure (the antenuptial agreement), one is certainly entitled to know what one is giving away when one has an interest in it. One might say that the marital property vests between the date of the marriage and the service of the summons. This is the estate that one has a right to receive. However, it is undefined; the court or the parties by subsequent agreement will determine what each party is actually entitled to receive. However, equitable distribution of property is subject to a divorce being granted; it is therefore contingent. In short, each party after the marriage has a right to something; it simply takes time to determine what that right is in terms of money and property.

With the antenuptial agreement, neither party has any right to any property. Therefore, neither party is giving away anything at that time. Therefore, disclosure is not required; neither party is waiving any existing property or property right. They are waiving a possible expectancy before it matures into a right.

It follows that the mere fact that one waives a possible future expectancy does not make an antenuptial agreement unconscionable. At the time it was signed, the parties had no interest in any part of the other's property. With a separation agreement, full disclosure is absolutely required; each party has " something" and they must know what it is before they give it away.

So what is the new standard? It is a standard somewhere between a "fiduciary relationship" and the standard described as an "arms length transaction" in ordinary business contracts. Let us call the new standard "Betrothed", a term used in GREIFF. The Court or Appeals has indicated that the lower courts must first examine the agreement to see if the parties are treated equally; to see if the agreement appears fair and reasonable on its face. They must than look to the circumstances surrounding its execution. Were there two truly independent attorneys? Is there a vast difference in education, including life experiences; one party may not have had formal education, but may have dealt with contracts and attorneys in the past. Were any misrepresentations made? The court indicated that the burden of proof may change to the proponent of the agreement based upon consideration of all these factors. It indicated that there is no hard and fast rule for determining when this burden is met. There is no presumption as to who has the ultimate burden of proof. The proponent of the agreement goes forward indicating that there is a valid and subsisting agreement. The party claiming fraud, duress, undue influence and/or unconscionability then has the burden of showing a " fact-based, particularized inequality before a proponent of a prenuptial agreement suffers the shift in burden to disprove fraud or overreaching." The court went on to state that the test must " be whether, based upon all of the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shift the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence." In short, while the reasonable man must first look to the agreement, it is not necessarily the specific terms that make the agreement unfair or unreasonable. However, if the terms do appear to be unfair or unreasonable, one must than look to the facts surrounding the execution. Were these terms the result of improper conduct, or simply arms length negotiations through independent attorneys. CHRISTIAN would seem to stand for the proposition that something that appears unfair or one-sided is merely grounds for going further and looking into the facts surrounding the execution of the agreement. It would appear that GREIFF stands for the same proposition.

It would appear that the courts in using the GREIFF standard will have to go through a different test than was used in the past.

Negotiating An Antenuptial Agreement

It is more important than ever that when you are called upon to draw an antenuptial agreement that you insist that the other side have an attorney representing them. Since in these situations, the parties are getting into a marriage instead of out of one, you can insist upon the other side having an attorney. Alas, but if only we could insist upon this when someone is seeking to get out of a marriage! If the other side says they won't get an attorney, counsel your client not to marry them. This will eliminate one of the two major areas parties allege in attacking an agreement (I wasn't represented by an attorney).

If indeed your client must pay for the other attorney, have your client write out the check to the other client, insist that the other party deposit the money in their own separate bank account and insist that the other party write their own check to the attorney that he/she chooses. Don't pick the other party's attorney and don't pay him/her directly. Again, remember, antenuptial agreements are generally attacked many years after they are executed. The attorney's may not be alive. What may have actually been innocent and expedient at the time that the agreement is executed may appear to be something else when made a part of a "fact-based, particularized" examination of the circumstances surrounding execution of an antenuptial agreement many years after its execution.

The second traditional area that is raised in attempting to set aside an antenuptial agreement is that there was no disclosure or that there was some sort of fraud perpetrated in connection with disclosure. While other may disagree, I believe that there should be no disclosure and the agreement should specifically say that there has been no disclosure. Disclosure representations are dangerous. Most separation agreements are attacked shortly after they are executed; two or three years later at the most. Antenuptial agreements are attacked many years after execution due to their very nature. Asset may change in value substantially; absent expensive appraisals, the party's estimates of value in an antenuptial agreement may be substantially different from their actual values. There may be allegations that one party or the other had knowledge that this change was taking place. Since neither party has any right to the asset at the time the antenuptial agreement is executed, one is far better off by avoiding disclosure altogether. In 25 years in the area of matrimonial and family law, I have yet to find anyone who said they wouldn't have married a person (with an antenuptial agreement) if they had known that he or she was that rich! The argument that they would have signed an antenuptial agreement with a poorer person but would have refused to sign one with an extremely wealthy person is simply to difficult to accept. A review of the case law would indicate that the courts have refused to accept it.(see PANOSSIAN v. PANOSSIAN, 172 A.D.2d 811, 569 N.Y.S.2d 182; ECKSTEIN v. ECKSTEIN,129 A.D.23d 552, 514 N.Y.S.2d 47 (2d Dept. 1987); HOFFMAN v. HOFFMAN, 100 A.D.2d 704, 474 N.Y.S.2d 621 (3d Dept. 1984); MILLER v. MILLER, 97 A.D.2d 581, 467 N.Y.S.2d 581 (3rd Dept. 1983); MATTER OF SUNSHINE, 40 N.Y.2d 875, 389 N.Y.S.2d 345 (1976), as well as MATTER OF DAVIS, 20 N.Y.2d 70, 281 N.Y.S.2d 767, 228 N.E.2d 768) However, if you give disclosure that is partial or incomplete, or the values assigned to the assets are simply inaccurate, you risk an attack on the agreement many years later.

If you believe the safest road is the one requiring disclosure, have each party prepare net worth statements and attach copies to the antenuptial agreement. Get the assets appraised; attach copies of the appraisals. In short, be as detailed, thorough, and accurate as possible and attach any and all backup paperwork to substantiate the claims. Remember, when the agreement is attacked, everyone may be dead except the parties. Avoid evidentiary problems by attaching all of the paperwork to the agreement. Everything you are required to get into evidence with respect to disclosure should go in as part of the first exhibit, the antenuptial agreement.

If you take the necessary steps to avoid the 2 traditional areas of attack upon antenuptial agreements, the court should never shift the burden to the proponent of the agreement. With 2 independent attorneys and nothing to conceal, there should never be a problem surrounding the execution of an antenuptial agreement.

1 I wish to thank my friend, Leonard Florescue, Esq. for providing me with a very detailed report of the underlying facts as determined by the lower court in GREIFF; he obtained the information from the Surrogates Court in connection with his recent excellent Article on this case which appeared in the NYLJ in November. As is all to usual one doesn't get any facts from the Appellate Division decision or the Court of Appeals decision. Unfortunately, the facts are only detailed when there is a vigorous dissent; love those dissenters!