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Challenges in Preparing a Prenup Agreement
The seminal modern case on marital contracts is Christian v. Christian, 42 NY2d 63 (1977). In that case, which involved a post-marital separation agreement, the Court of Appeals held that such agreements that are regular on their face should be binding and valid unless shown to be otherwise, but may be set aside if grounds are demonstrated which would serve to vitiate an ordinary contract. Judicial review in this regard was to be “exercised circumspectly, sparingly and with a persisting view” toward encouraging parties to settle their disputes. Notwithstanding the foregoing, the Christian court held:
“Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith (Ducas v. Guggenheimer, 90 Misc 191, 194-195, affd sub nom. Ducas v. Ducas, 173 App Div 884). There is a strict surveillance of all transactions between married persons, especially separation agreements (Hendricks v. Isaacs, 117 NY 411, 417, supra; Benesch v. Benesch, 106 Misc 395, 402; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], ' 37, subd 4, p. 37-9). Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract (Hungerford v. Hungerford, 161 NY 550, 553, supra; Cain v. Cain, 188 App Div 780, 782; Crowell v. Crowell, 135 Misc 530, 532, affd 229 App Div 771). These principles in mind, courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity. (Scheinberg v. Scheinberg, 249 NY 277, 282-283; Hungerford v. Hungerford, 161 NY 550, 553, supra; Matter of Smith, 243 App Div 348, 353; Ducas v. Guggenheimer, 90 Misc 191, 194, affd sub nom. Ducas v. Ducas, 173 App Div 884, supra; Montgomery v. Montgomery, 170 NYS 867, affd 187 App Div 882; see Validity of Separation Agreement As Affected by Fraud, Coercion, Unfairness or Mistake, Ann., 5 ALR 823, 827).
To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching (2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], ' 37, subd 5, p 37-12; cf. Matter of Baruch, 205 Misc 1122, 1124, affd 286 App Div 869; Pegram v. Pegram, 310 Ky 86, 89- 90). In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made.”
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.