Litigating cases involving a prenuptial agreement can be frustrating at times. When prenups are done right, there is proper disclosure, both parties have counsel or acknowledge that they had a right to counsel, there is sufficient time, there is a waiver of seeking further disclosure, and the terms are not unconscionable, notwithstanding the fact that someone might be giving up rights upon death or divorce that they would otherwise have had but for the prenup (that’s exactly why there are prenups.)

However, when it comes time for the divorce, despite the fact that the prenup was done right, the person who is due to get less than they might absent a prenup figures they may as well swing for the fences and try to get the prenup set aside. Too often, courts don’t nip this in the bud early on and force the objector to put their cards on the table immediately, and moreover, schedule a hearing on the enforceability of the prenuptial agreement, if there really is a bona fide issue, early in the case, before wasting time on needless discovery about issues otherwise covered in the prenup. I previously blogged on this topic a few years ago.

So the objector makes the usual arguments like I need discovery that I waived then, to determine now if the disclosures were accurate. Or I was under duress because he wouldn’t get married without a prenuptial agreement. During the pandemic, I had a prenup trial where the objecting spouse actually said that and the judge interrupted her saying that that was essentially the case in every prenup and thus, not duress. Sometimes they claim, after the fact, they didn’t understand, or that they didn’t have enough time, or that it wasn’t fair or any of the other conclusory statements tracking the language in the statute, but without any factual basis to support the statement.

Perhaps the thought process is to either try to win a war of attrition and get a better deal, or win the lottery and get the agreement knocked out. Sometimes just dragging it out, in an age when trial dates is hard to come by, is a win if the status quo is being maintained. However, a cautionary tale can be seen from the recent Kevin Costner prenup fight because the agreement, as many due, had a clause requiring the losing objector to pay legal fees. When that is enforced, that could be a game changer to prevent meritless objections. Unfortunately, those clauses aren’t always enforced, though they should be because they are bargained for terms of the prenup.

In the same trial mentioned above, the objector actually took the position that while it was absolutely her signature on the prenup, she didn’t remember signing it and her attorney never explained it to her. As to the first, that was clearly absurd because lack of memory is not a defense. As to the second, her lawyer at the time was deposed and disagreed.

On March 7, 2024, the unreported (non-precedential) Appellate Division decision in the case of Papetti v. Papetti caught my attention because of the fact that the typical, knee jerk arguments to set aside a prenuptial agreement were not only rejected, but were rejected on a motion for summary judgment.

In this case, the parties were married for 26 years, having married in 1993 after signing a prenup. In the agreement, the wife waived any entitlement to maintenance, alimony, and other marital rights upon termination of the marriage. Rather, in the event of a divorce, husband would make specific cash disbursements to her based on two schedules incorporated into the agreement. Pursuant to the applicable schedule, at the time of the divorce, she was entitled to $750,000.

The agreement also provided that “Each party has had the opportunity to obtain and has in fact obtained independent legal advice prior to the execution of this [a]greement and has been fully advised as to his or her rights hereunder . . . .”

With her divorce complaint, the wife filed a motion to set aside the prenuptial agreement. The husband cross moved for enforcement which the trial court granted, holding that the wife voluntarily signed the agreement; received a full accounting of husband’s assets; and failed
to either make a prima facie case the agreement was unconscionable or show a genuine issue of material fact.

The Appellate Division affirmed. First it disposed with the wife’s argument that she didn’t have an opportunity to consult with independent counsel in that she claims to have not met or consulted with her lawyer before she signed the agreement. She also claimed that there were issues of act regarding the negotiation and drafting of the prenup. The Appellate Division rejected those arguments noting that despite the wife claiming that there were factual issues regarding her selection of counsel and the negotiation and signing of the agreement, she provided no competent evidence to support her claim. The court then noted that the agreement specifically provided that, “each has had the right and opportunity to seek, and each has in fact obtained, independent legal advice . . . . Each party is fully satisfied with the services and advice of such counsel . . . .” Further, the the signature page contained the following language: “[e]ach party . . . has been fully advised as to his or her rights hereunder.” The agreement also provided that each, “has fully read this [a]greement”; and “has been advised or had ample opportunity to be advised by legal counsel.”

In further rejecting the wife’s claims, the Appellate Division noted:

Plaintiff relies on her own unsupported assertions but cannot rebut her written acknowledgment. Our review of the record shows no genuine issue of material fact regarding plaintiff’s counsel’s representation or her execution of the agreement.

What does this mean? It means you just can’t make bald assertions, particularly those contradicted by the express terms contained in the agreement. You have to come forward with actual proofs.

The court also rejected the wife’s claims that the husband didn’t come forward with proofs to contradict her bald assertions, noting that he produced the signed agreement with her signature, which was enough, because she had the burden of proof. The Court then went on to reiterate the standard of review for prenuptial agreements noting that the statute provides that a properly executed premarital agreement is presumed to be valid unless the party seeking to set it aside proves by “clear and convincing evidence” (i.e. a higher burden than the typical preponderance standard most often seen in family court) that:

a. The party executed the agreement involuntarily; or
b. The agreement was unconscionable at the time enforcement was sought; or
c. The agreement was unconscionable when it was executed because that party, before execution of the agreement:

(1) Was not provided full and fair disclosure of the earnings, property and financial obligations of the other party;
(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or
(4) Did not consult with independent legal counsel and did not voluntarily and expressly
waive, in writing, the opportunity to consult with independent legal counsel.
d. The issue of unconscionability of a premarital or precivil union agreement shall be determined by the court as a matter of law. An agreement shall not be deemed unconscionable unless the circumstances set out in subsection c. of this section are applicable.

As to the issue of disclosures, wife complained that the disclosures were never explained to her and no supporting documents were provided. She also complained that she did not receive notice of any financial obligations that husband had. She also claims that she didn’t effectively waive disclosure. The Appellate Division rejected these arguments too. As to the disclosure, the court noted that she acknowledged reviewing the schedule of assets which included family business holdings, investment accounts, cash holdings, real estate and other property and annual income. Her claim that she didn’t understand the disclosure was rejected given her background in accounting and finance, and moreover, she provided no proof that the disclosure was inaccurate or deficient. As to the claim that she did not get disclosure of obligations, that too was rejected because she provided no proof that any such obligations existed.

As a result, the court found that she did not meet her burden of showing, by clear and convincing evidence, that the financial disclosure was inadequate. Moreover, the court noted that she voluntarily signed the express waiver in the prenup relinquishing her right to additional disclosure.

The court concluded its analysis, as follows:

There is nothing in the record to support plaintiff’s claims about the validity of the agreement as executed. She relies solely on unsupported assertions to buttress her claims, which are undermined by her own actions. The trial court correctly found the agreement valid and enforceable as a matter of law, and we discern no error. (Emphasis added)

The takeaway from this case is that if you are going to attack a prenuptial agreement, you need to make specific allegations and provide proofs from the beginning. Vague allegations that both mirror the statutory language, but put no meat on the bones, so to speak, that contradict the specific provisions in the Agreement, are not enough. It’s a shame that this is not a reported opinion because it serves as a good blueprint as to what the analysis should be when a prenup is attacked.

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department 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 Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.