Prenuptial Agreement, Enforcement Of All But One Provision

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The New York Law Journal, July 18, 2006, discusses a new case that enforced all but the attorney fee restriction of a prenuptial agreement. "An appeals court in Brooklyn has declared unenforceable provisions of a prenuptial agreement that barred a spouse from seeking attorney fees. A lawyer on the case said the decision was the first in which an appeals court had nullified part of a prenuptial agreement concerning attorney fees, rather than the whole agreement. A unanimous panel of the Appellate Division, 2nd Department, said its ruling was a matter of public policy, considering the wealth of the husband -- his assets are valued at nearly $5.6 million -- compared to the wife, whose assets are valued at $160,000. It stressed, however, that it was not commenting on all such provisions in prenuptial agreements. Each similar case should be reviewed individually, the court said. 'The enforceability of a provision of a prenuptial agreement waiving the right to seek an award of an attorney's fee presents a clash of two competing public policies -- that in favor of resolving marital issues by agreement and that in favor of assuring that matrimonial matters are determined by parties operating on a level playing field,' Justice David S. Ritter wrote for the court in Kessler v. Kessler, 2004-04773."
Sorry that I didn't find either the Journal article or the case online to which I could link.
UPDATE: Thanks to Jeanne Hannah at Updates In Michigan Family Law for providing the online access to
The New Tork Law Journal article, "Prenuptial Pact's Attorney Fee Provision Nullified" by Tom Perrotta and the link to Kessler v. Kessler.

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