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AgreementsDivorceProperty DivisionNew York Pre- Nuptial Agreement Upheld: How Would You Rule?

April 16, 2013

New York divorce courts will uphold unambiguous terms of a pre-nuptial agreement even if enforcing the agreement seems harsh.

How would you decide this case if you were the judge? (I will try and hide the genders of the parties so you can impartially rule.)

In a recent case, decided by a New York Appellate Court, a couple executed a pre-nuptial agreement that defined marital property as:

(a) any property that is jointly owned by the parties, and (b) all household furniture and furnishings owned by either party, whether heretofore or hereafter acquired and regardless of the form in which title is held.

Everything else was defined as separate property, including:

real property purchased by either party during the marriage using their own separate property, as well as the appreciation of such property during the marriage “whether caused by the efforts of a party or a third party, or by inflation, or by any other cause or stimulus.

After the parties wed, B purchased what became the marital residence for $295,000, making $150,000 down payment using from the proceeds of separate property.   C took out a mortgage for the balance. Title to the home was in B’s name.  (I do not how the mortgage was in C’s name, if C did not have title.)

B was not employed after the parties were married so C paid the mortgage and all the carrying costs for the house.

The parties divorced.  What should the court do with the house?

The prenuptial agreement defined marital property as any property that is jointly owned.  Here, title to the property was solely held by B, who purchased it using separate property.    C’s payment of the mortgage and carrying costs did not “convert” the property from separate to marital.

The home is separate property and not subject to equitable distribution.


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