When a party to a divorce seeks to invalidate a prenuptial agreement, it often is on the grounds of duress/coercion. Two aspects of that claim which seem to be raised most often are, that the wife-to-be is pregnant, that the husband-to-be threatened that without a prenuptial agreement there would be no marriage, and/or that the agreement was signed on the eve of the wedding. Recent cases throughout the nation have demonstrated that courts are reluctant to invalidate agreements on these bases. Some examples follow.
In August, 2006 the Appeals Court of Massachusetts in Biliouris v. Biliouris, 852 N.E.2d 687 (A.C.Mass. 2006) found an antenuptial agreement not to be the product of coercion or duress. There, the wife, a pregnant single mother, was given the agreement shortly before the scheduled wedding date. She was told that if she did not sign the agreement, there would not be a wedding. The Court found that she had sufficient time to review the agreement. Significantly, her lawyer recommended she not sign the agreement and she signed it any way. This could be an important factor if you were faced with such an agreement, either as counsel during litigation, or in your representation of a party prior to the marriage. Also, the wife stated to the notary that the agreement was signed of her “free act and deed.” That could be a good suggestion for drafting of such agreements. The husband, a physician, and his attorney met the wife in a restaurant and immediately went to a bank and the parties signed the Agreement. They also signed the exhibit pages, listing the parties’ assets. The Court held that even if the wife’s version of the facts was accepted and she was presented with a draft of the Agreement just one week prior to the wedding, she still had sufficient time to review it. It was held that while the wife had a difficult choice, that did not divest her of her of her free will and judgment.
In In re Marriage of Drag, 326 Ill.App.3d 1051, 762 N.E.2d 1111 (3d Dist. 2002), notwithstanding a fiduciary obligation, the Court held that the husband’s financial disclosure proved he did not conceal assets. It should also be noted that the wife inDrag proved that the husband insisted on the agreement, which was executed one day before the wedding. Her lawyer told her to delay the wedding to give her time to obtain a better deal, but she refused. Regarding the request for modification of the maintenance waiver, the court requires catastrophic circumstances, which subject a party to abject poverty. The Court, following the Prenuptial Agreement Act held that Section 10 only allows a modification of maintenance, if a circumstance not contemplated by the parties occurred, such as extreme poverty. 762 N.E.2d at 1116.
In In re Marriage of Barnes, 324 Ill.App.3d 514, 755 N.E.2d 522 (4th District 2001) the Court stated that conditioning marriage on the execution of a premarital agreement cannot be coercion, and that acts or threats cannot constitute duress unless they are legally and morally wrong. It was pointed out that both parties could have remained single. Further, it was also noted in that case that the agreement itself stated it was voluntarily signed and not the result of coercion or duress. To the same effect is In re Marriage of Murphy, 359 Ill.App.3d 289, 834 N.E.2d 56 (3d Dist. 2005), where there was testimony that the Prenuptial Agreement was not mentioned until two days before the wedding, and the agreement was signed on the day of the wedding. The Court found that the agreement was not without stress, but declined to find that duress existed due to the last minute nature of the execution. The Court noted that it is inherent in every prenuptial agreement that a party might not marry the other if the agreement is not signed. 834 N.E.2d at 61. The wife was made aware that if she wanted to marry the husband, she would have to sign an agreement. She had a lawyer.
In Kilborn v. Kilborn, 628 So.2d 884 (C.C.A. Ala. 1993), the wife-to-be was 17 years old when she started living with the husband-to-be. Three years later she became pregnant. Her fiancé said that she would have sign an antenuptial agreement before the wedding. Her attorney advised her to sign the agreement only with the following qualification, “Due to duress and being pregnant.” Her husband-to-be, did not accept that condition and he refused to go ahead with the marriage. Months later, the wife-to-be contacted yet another attorney who advised her not to sign the agreement. She said that she signed the agreement because she did not want her child to be born out of wedlock. There was an exhibit listing the husband’s assets attached to the agreement. It was held that the wife voluntarily signed the agreement with independent advice and full disclosure.
In Hamilton v. Hamilton, 591 A.2d 720 (Super. Ct. Pa. 1991), the wife was pregnant and unemployed. The agreement was signed shortly before the marriage. The Court held, “The record is clear that there was neither force nor threat of force used to induce Jill to sign the antenuptial agreement in this case. She was told, however, that without the agreement there would be no wedding. It is also true that she was pregnant, unemployed, and probably frightened. Nevertheless, she was represented by counsel, who was available to advise and did, in fact, advise her not to sign the agreement. Jill rejected this advice and signed the agreement. It seems clear, therefore, that she did not sign the agreement under duress. Where a party has been free to consult counsel before signing an agreement, the courts have uniformally rejected duress as a defense to that agreement.” 591 A.2d at 722. It was also noted in that case, “society has advanced, however, to the point where women are no longer regarded as the ‘weaker’ party in marriage or in society generally. Indeed, the stereotype that women serve as homemakers while men work as breadwinners is no longer viable. Quite often today both spouses are income earners. Nor is there viability in the presumption that women are uninformed, uneducated, and readily subjected to unfair advantage in marital agreements. Indeed, women nowadays quite often have substantial education, financial awareness, income, and assets.” Id.
In Baker v. Baker, 622 So.2d 541 (D.C.A. Fla. 1993), the parties were 60 years old at the time of the marriage. The wife, by getting married, gave up $55,000.00 per year in alimony from her former husband. The agreement was signed less than two weeks before the marriage. The parties got divorced, and were 71 years old at the time. The wife had never worked for a living and had no ability to support herself. She had no present income other than a small amount of social security benefits. The trial court invalidated the agreement, finding that since the husband had the ability to pay permanent alimony, the agreement was unconscionable and overreaching. The District Court of Appeal in Florida reversed, stating that there was a disclosure and the wife had independent counsel. Under the standards of that state, even a bad bargain, freely executed, was not a ground to invalidate an agreement. It was noted that the agreement was in fact unfair and inequitable. Nonetheless, she freely and voluntarily executed the agreement. She was held to the bargain she made.
In Herrera v. Herrera, 895 So.2d 1171 (D.C.A. Fla. 2005), the parties were married eight days after the pregnant wife-to-be signed the agreement. During the marriage she stayed home and cared for the parties’ three minor children. Again, her claim of duress was not recognized by the courts.
In Rider v. Rider, 669 N.E.2d 160 (Ind. 1996), the parties were married six days after signing an agreement. During the 4-1/2 year marriage the wife’s health deteriorated and she was diagnosed with inflammatory neuropathy, a painful, incurable condition. She quit her job and is unable to work. She filed for social security disability benefits, but the claims were denied. The alimony waiver was held valid by the Supreme Court of Indiana. It was held that if support was important to either of the parties, it should have been included in the agreement. It was noted in that case that there was not a gross discrepancy between the parties’ financial circumstances. Also, that the wife had more property than the husband, but the husband had more income. “Enforcement of the antenuptial agreement would leave one spouse with virtually all of the real and personal property, while leaving the other spouse with a modest income stream. This is what the parties brought into their short marriage, and this is what they sought to protect.” 669 N.E.2d at 164. The Court concluded, “While we sympathize with her, and we understand that enforcement of this contract eventually may force her to sell her home, we cannot find enforcement of this antenuptial agreement to be unconscionable.” Id.
In Osorno v. Osorno, 76 S.W.3d 509 (C.A. Tx. 2002), the wife again argued that her being pregnant was a basis to invalidate the prenuptial agreement. And again, the husband said he would not marry her without an agreement. Also, they were married the day after the agreement was signed. The Court held, “For duress to be a contract defense, it must consist of a threat to do something the threatening party has no legal right to do. (citation) In this case, aside from his moral duties, Henry had no legal duty to marry Gloria. His threat to do something he had the legal right to do is insufficient to invalidate the premarital agreement. Gloria was faced with difficult choices, but we cannot find her decision to sign the agreement was involuntary.” 76 S.W.3d at 511.
In Mallen v. Mallen, 622 S.E.2d 812 (Ga. 2005), the husband asked the wife to sign a prenuptial agreement prepared by his attorney, 9 or 10 days before the planned wedding. She took the agreement to a lawyer, whom she claimed the husband paid. The lawyer said he did not have time to fully examine it in the short time before the wedding. She did not consult another attorney, nor did she postpone the wedding. She met with the husband and his lawyer more than once. She had a high school education and was working as a restaurant hostess while the husband had a college degree and owned and operated a business. Her net worth at the time of the agreement was about $10,000.00, and his net worth was at least $8,500,000.00. After 18 years of marriage his net worth was about $22,700,000.00. The wife’s pregnancy was held not to rise to the level of duress. Notably, an agreement is not rendered unconscionable just because it perpetuates an already existing disparity between the parties. Further, the wife’s interesting claim that circumstances have changed because of the $14,000,000.00 increase in the husband’s net worth during the marriage, was unavailing. It was held the continued disparity in their situations was plainly foreseeable, and also that she must have anticipated his wealth would grow over the years of the marriage.
As can be seen, certain claims seem to commonly be raised, but these particular ones are not playing well throughout the country.
Paul L. Feinstein, a Chicago practitioner with over four decades of experience, practices family law with an emphasis on divorce litigation, consulting, and appeals. Paul is often hired by trial lawyers to handle appeals and to assist them with determining legal strategies and preserving a sufficient record at trial. He has belonged to the American Academy of Matrimonial Lawyers since 1991 and the Appellate Lawyers Association since 2010. He can be reached at (312) 346-6392. View his Divorce Magazine profile.