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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).
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