It is not uncommon for parents of a person that is getting married to demand that their child get a prenuptial agreement to protect the family business, trusts or other assets.  While common, these can be difficult agreements to draft because the couple that is marrying appear to be aligned, and often will agree to terms between themselves, only for different terms to appear in the document, which are far less generous to the other party.

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It would not be shocking to learn that to induce their fiance’ into signing, the person promises that they won’t actually follow it, or they will tear it up after it is signed.  Well, the New York Post, a beacon for interesting divorce news, recently ran a story where the parties did just that.

The story reports that  the groom to be convinced his then-fiancée to sign the prenuptial agreement during their “whirlwind engagement of less than three weeks.” Allegedly, he told her that his father “threatened to cut him off” if he didn’t have an agreement. Further, he allegedly promised her that he would tear it up after the wedding and in fact, on the honeymoon, the parties jointly tore up the prenuptial agreements and threw it into the ocean.

Notwithstanding this act, a New York  judge enforced the prenuptial agreement because the document expressly states that no promises or covenants outside the agreement shall matter or be taken into account and because each party had their own lawyer representing them when entering into the agreement.

How does this square with the Petrakis case that we blogged about last year where a New York court threw out a prenup because it was coerced?  In that case, the husband allegedly promised to “tear up” the prenup when the parties had kids?  What about claims like fraud, fraudulent inducement to contract, detrimental reliance, etc.?  Should one party be bound by the other party’s undisclosed intentions – essentially ignoring the seemingly undisputed words and deeds of the other.

That said, most agreements specifically have a clause that require all changes to the agreement to be in writing and signed with the same formality as the prenup itself.  Moreover, the New Jersey prenuptial agreement statute specifically says:

After marriage of the parties or the parties establishing a civil union, a premarital or pre-civil union agreement may be amended or revoked only by a written agreement signed by the parties, and the amended agreement or revocation is enforceable without consideration

So, what is the take away.  Sadly, you cannot rely on your spouse to be or spouse’s representation about changing or tearing up a prenup.  Like everything else, you need to get it in writing.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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