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When Can a Prenup Be Overturned?

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Another day. Another A-Rod divorce rumor. Now a U.K. tabloid is reporting a Madonna and A-Rod 'sex tape' is being offered to media outlets for $2 million.

Whether the tape is real, is subject to speculation. Meanwhile, it is the authenticity of the prenup signed by Alex and his wife Cynthia, and signed a month before their November 2, 2003 wedding, that is very much at issue right now.

The spurned wife wants the couple’s prenup annulled and an “equitable distribution” of all assets acquired during the marriage, meaning half of A-Rod’s reported $120 million fortune. She picked Houston-based divorce lawyer Earl Lilly, to argue her case.

It was a smart move on her part. In 1988, Lilly convinced a Houston Jury to annul the prenup penned by Patti Chiles before her marriage to wealthy Texas businessman Jerry Chiles. Will this Texan hard-hitter score another home run in the courtroom?

Lilly seems confident enough. Although he declined to render legal advice or opinions, he did have one thing to say. "A ‘prenuptial agreement’ is a contract," he says. "Generally all contracts are subject to judicial scrutiny as to validity and interpretation, and possibly other legal issues."

But other lawyers are predicting that the likelihood of Cynthia coming out on top is slim, including Manhattan divorce attorney, Raoul Felder who is no stranger to the world of high-profile divorces. “Prenuptial agreements can be set aside for intrinsic/extrinsic reasons. But the bottom line is that they are not going to be set aside,” he says.

“Most cases show that the prenup will be sustained. The burden is that couples have to go through a full lawsuit to find that out.” Unsurprisingly, Felder’s guess is that the Rodriguez prenup will be sustained in court.

He’s not alone. Arlene G. Dubin, author of Prenups for Lovers: A Romantic Guide to Prenuptial Settlements, is a family lawyer and Partner at New York law firm Moses and Singer LLP. “Today, the standards for enforcement have been getting very clear,” she says.

Dubin outlines three terms for a prenup to be considered bulletproof:

First, each party requires a separate, independent lawyer.

Second, there must be full and complete financial disclosure, including all assets and liabilities.

Third, the couple has to make sure it’s not done at the last minute, or under duress, so that they have time to negotiate the terms. (And, according to Dubin, most states require prenups to be in writing and signed.)

“It’s a mistake for people to think that it’s easy to get their prenup invalidated," says Dubin. "Even in the Barry Bonds trial, the prenup was upheld though his wife didn’t speak any English! This was a high-level court decision and the court said the wife understood exactly what she was doing."

Lawyers confirm it’s getting more and more difficult to challenge prenups that meet the above conditions and were entered into knowingly and willingly. Robert J. Kaufman, founder of Georgia law firm Kaufman, Miller & Sivertsen, P.C. says a prenup may be challenged if it fails to meet the above prerequisites. For example, he jokes, “if the couple’s walking down the aisle and the hubby whips out a prenup and expects it to be signed, the element of duress may be challenged.” Like Kaufman, Dubin concurs that prenups are not written in stone, but lawyers tend to agree that the current trend is that of greater enforceability.

James A. Hennenhoefer, President of the American Academy of Matrimonial Lawyers and Partner at James A. Hennenhoefer A.P.C. in California, expanded on the question of prenups and, at first, it sounded like his views coincided with Lilly’s. “Any contract you enter into except an irrevocable trust can, by a later contract like a post-nuptial, be changed, amended or nullified altogether,” he says.

BUT, in the case of divorce, he agrees that prenups are usually honored and enforced by the court if they meet the necessary conditions and were not executed under coercion.

Hennenhoefer recommends that in order to avoid problems, couples should build incentives into their prenups, ensuring that both parties are happy with what they sign. In the case of divorce, neither would be stranded without a paddle. “Ninety percent of the time, prenups are enforced if they were done properly," he says. "But if the court determines they are egregious, bizarre or unfair, then they can be altered.”

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