Given the increased frequency of second and third marriages, and the increased use of the prenuptial agreement as a tool for the private ordering and settlement of financial affairs in an effort to avoid divorce litigation, it is not surprising that there has been a somewhat sudden increase (perhaps a surge) in reported decisions regarding the enforceability of prenuptial agreements and early marriage postnuptial agreements, with several decisions coming out of the appellate divisions and trial courts around the state in the past year.
As our colleague Glenn Koopersmith wrote in a column earlier this year titled "Prenuptials and Early Postnuptials: Let's Call the Whole Thing Off,"1 two of the key recent decisions regarding prenuptial agreements are Petracca v. Petracca,2 and Cioffi-Petrakis v. Petrakis.3 In both, the Second Department invalidated the agreements in question, but for different reasons. One can't help but wonder if these decisions are the start of a tidal change, or merely following the existing standards. A review of these decisions reveals a focus on fundamental fairness as an unwritten but underlying theme. That focus has carried over to subsequent decisions as well.
'Petracca' and 'Cioffi-Petrakis'
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