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Prenups: why it's key to ensure legal compliance from the outset

Can a defective part be fixed?

Well, that certainly depends. A bicycle tire, most likely. Bad brakes? Not a prolem.

What about a prenuptial agreement that doesn't comply precisely with the statutory requirements of the state in which it was executed?

Courts in any state, including Florida, are likely to grapple with that, as is clearly evidenced by a matter currently before the highest court in New York. Justices of that state's Court of Appeals recently heard oral arguments and will issue a ruling in due course regarding an ex-couple's dispute over a marital contract executed before they were married.

In short, here's what happened. The couple took their agreement to a notary, as required under state law. The relevant statutory provision in New York states that the persons acknowledging a marital contract be the same persons "described in and who executed such instrument." Proof of that is established by a statement in the agreement indicating that a notary asked for identification. In the couple's case, no such statement existed.

That is precisely what the ex-wife seized upon following divorce, when she sought invalidation of the agreement.

To cure the defect, her former spouse secured an affidavit from the notary which noted that, although he did not remember notarizing the document, he always asked parties for identification.

The question before various state courts en route to final appeal before the highest tribunal in New York was thus this: Did the affidavit sufficiently suffice as a cure to a lack of precise compliance with state law requirements?

Two lower court levels found that it did, ruling that the affidavit was curative and that the agreement was in "substantial compliance" with state law. In last week's oral arguments, Court of Appeals justices seemed to not uniformly support that view, with one of them noting that a ruling favoring the ex-husband could create future uncertainties regarding such agreements.

We will update readers on how the matter ultimately plays out. One thing about it is already clear: The sojourn through the courts would likely have been flatly preventable had an experienced family law attorney been involved with all aspects of document preparation and execution.

Source: Thomson Reuters, "Court of Appeals hears arguments in prenuptial dispute," Daniel Wiessner, April 23, 2013

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