A prenup dispute: why a proven attorney is important

| Apr 26, 2013 | Prenuptial Agreements |

A family law case that is exhaustively working its way through the court system in another state has broad relevance in other states as well, including in Georgia. The matter underscores the importance of working with an experienced attorney where important legal instruments are concerned.

A New York couple was married in 1997 and filed for divorce a decade later. They had executed a prenuptial agreement before their marriage, which the man sought to enforce upon marital dissolution. His ex-spouse challenged enforcement, which began a long slog through the state’s court system. The case is currently before New York’s highest court, the Court of Appeals.

The document is being challenged by the woman as being fundamentally flawed and thus invalid. New York state law requires that a marital contract be acknowledged before a notary and include a written statement indicating that the notary asked for identification.

That didn’t happen in the disputed case, with the woman arguing that, “if it’s not done right contemporaneously, it’s invalid, period.”

The former husband contests that, saying that the affidavit he subsequently secured from the notary in which that person stated that he always asks parties signing documents before him to show identification cured the defect.

Both a court of first instance and an appellate court agreed with that view.

The state’s high court hasn’t yet issued a ruling in the matter, but comments from justices indicate a divergence of opinion. At a hearing earlier this week, one judge questioned why the ex-spouse should be penalized because “the notary failed to use the magic words.” Another justice stated, though, that finding for the former husband could create future uncertainty for lower courts trying to determine when a facially flawed document otherwise substantially complies with legal requirements.

As is manifestly clear from the dispute, it likely would never have emerged had an experienced attorney been involved to ensure accuracy and full legal compliance when the document was negotiated and executed.

Source: Thomson Reuters News & Insight, “Court of Appeals hears arguments in prenuptial dispute,” Daniel Wiessner, April 23, 2013

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