Leeds,Morelli & Brown: Legal Blog 

On December 18, 2008, the New York Court of Appeals issued an interesting opinion regarding the impact a foreign prenuptial agreement has under New York divorce law.  The principal issue before the Court was whether the parties’ foreign prenuptial agreement precludes the equitable distribution of certain property under New York law. 

In Kipnis v. Kipnis, the parties were married in Paris, France in 1965.  Prior to entering into marriage, the couple executed, under French Civil Code, a “Contrat de Mariage,” which provided that the couple take separate ownership of assets held in the couple’s respective names during the course of the marriage.  The couple relocated to New York, where they maintained separate accounts, with the exception of two jointly-held properties.  After 38 years of marriage, Mrs. Kipnis filed for divorce, seeking ancillary relief.  Mr. Kipnis’ assets totaled $7 million, while the Mrs. Kipnis’ assets ranged from $700,000 to $800,000.  She contends that all of the parties’ property should be subject to equitable distribution under Domestic Relations Law §265(B)(5). 

The Court explains:

The Domestic Relations Law . . . contemplates two basic types of prenuptial agreement that affect the equitable distribution of property. First, parties may expressly waive or opt out of the statutory scheme governing equitable distribution.  See e.g. Bloomfield v. Bloomfield, 97 NY2d 188, 193 (2001); Housset v Housset, 200 AD2d 508, 509 (1st Dep’t 1994). Second, parties may specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under Domestic Relations Law § 236 (B) (5). Such property would then remain separate property upon dissolution of the marriage. In either case, the intent of the parties “must be clearly evidenced by the writing.”  Tietjen v Tietjen, 48 AD3d 789, 791 (2d Dep’t 2008). 

The opinion goes on to explain that the Kipnis’ agreement, although executed in France, falls into the second prenuptial agreement category.  The Court determined that, pursuant to Domestic Relations Law § 236 (B) (1) (d) (4) and (B) (5) (b), which provide that assets designated as separate property by a prenuptial agreement will remain separate after dissolution of the marriage, the couple’s prenuptial agreement precludes equitable distribution of the parties’ separate property.

To read the entire opinion: http://caselaw.lp.findlaw.com/data/ny/cases/app/213opn08.pdf  
 
Please be sure to visit www.lbdivorcelaw.com, the website for the law firm of Leeds, Morelli & Brown, P.C., for more information on New York family law.