Stern Show Could Beth get the pre-nup tossed? Not likely.

Discussion in 'The Howard Stern Show' started by the G-man, Feb 4, 2016.

  1. the G-man

    the G-man Well-Known Member

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    With all the chatter about the “blind item,” hinting that Howard is having an affair with Marci Turk, and the resulting speculation about how difficult (or easy) it would be for Beth to toss the pre-nup, I thought the following discussion about the state of the law in New York might be interesting to some of you (especially those of you who think pre-nups are easy to break).


    The following is from various law books, court cases, etc. Citations are included.


    In New York State, prenuptial agreements are also referred to as antenuptial agreements.


    It is well-established that the law favors antenuptial agreements. 38 N.Y. Jur. 2d Decedents' Estates § 166


    A duly executed antenuptial agreement is given the same presumption of validity as any other contract and is presumed valid in the absence of fraud; it has been said that a party seeking to rescind a prenuptial agreement “bears the very high burden of showing that it is manifestly unfair and that this unfairness was the result of overreaching” on the part of the other party to the agreement. Bronfman v. Bronfman, 229 A.D.2d 314, 645 N.Y.S.2d 20 (1st Dep't 1996).


    The evidence of overreaching must normally consist of the concealment of facts, misrepresentation, or some other form of deception. Conclusory allegations of fraud are insufficient to raise a question of fact as to the validity of such an agreement. Regardless of the fairness and reasonableness of the agreement, it is not burdened by a presumption of fraud arising from the subsequent confidential relationship of the parties. 45 N.Y. Jur. 2d Domestic Relations § 168.


    There is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties and that, therefore, a high order of evidence is necessary in order to overcome that presumption. Bloomfield v. Bloomfield, 97 N.Y.2d 188, 738 N.Y.S.2d 650, 764 N.E.2d 950 (2001); Brassey v. Brassey, 154 A.D.2d 293, 546 N.Y.S.2d 370 (1st Dep't 1989); Matter of Estate of Zach, 144 A.D.2d 19, 536 N.Y.S.2d 774 (1st Dep't 1989). Moreover, an agreement is not unconscionable simply because marital assets are divided unequally or because one spouse gave away more than he or she was legally required to. 45 N.Y. Jur. 2d Domestic Relations § 167


    Furthermore, in regard to division of property, the Appellate Division, Fourth Department, has stated that the courts lack authority to review property distribution agreements for unconscionability. Colello v. Colello, 9 A.D.3d 855, 780 N.Y.S.2d 450 (4th Dep't 2004).


    In regard to counsel fees, although N.Y. Dom. Rel. Law § 237 empowers the court in its discretion to order one party to a matrimonial action to pay the counsel fees and other expenses of the other party, it has been held that counsel fees and expenses are not allowable in an action seeking to set aside an antenuptial agreement nor allowable with respect to a counterclaim to enforce such agreement. Lamborn v. Lamborn, 56 A.D.2d 623, 391 N.Y.S.2d 679 (2d Dep't 1977).


    You will also note there is nothing, nothing, above about such agreements expiring automatically within ten years. In fact, under the “statute of limitations,” the longer it has been since the agreement was executed, the harder it can be to set it aside. Prenuptial agreements are contracts, and actions for rescission are governed by the six-year statute of limitations. In the absence of continuing duress or undue influence, an action to rescind a prenuptial agreement accrues and the statute of limitations begins to run once the agreement is executed. Moreover, there is no legal support for a tolling of the six-year limitations period during the life of a marriage. 75 N.Y. Jur. 2d Limitations and Laches § 198.


    In short, any attempt by Beth to set aside her prenuptial agreement would require her to plead and prove a very heavy burden. She might even be time-barred.


    This is not to say that, depending on the facts of the case, she could not make out a valid case to set it aside. However, the notion that such agreements are routinely tossed out (in New York State at least) is totally fantastical. Furthermore, given where they got married and where they have resided, it is all but certain the pre-nup is governed by the above New York State laws, regardless of where Beth might choose to bring a divorce.
     
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  2. TallTyrion

    TallTyrion Triggered like a mofo VIP

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    The story isn't about Hmus.

    I've heard it's about Marcus Lemonis
     
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  3. Donkeyboy2190

    Donkeyboy2190 Never earned a dimes

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    She's got nothing unless she produces an anchor baby
     
  4. reno

    reno VIP Extreme Gold

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    So in other words, Beth is going to have to dip his almonds in rat poison to get a big pay day.
     
  5. the G-man

    the G-man Well-Known Member

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    I don't know whether the story is about Howard or not. But the question comes up all the time on this board and I thought it would be worthwhile to explain the status of the law as it actually exists
     
  6. the G-man

    the G-man Well-Known Member

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    Not necessarily. The prenup might provide that most of the stuff goes to his kids Under the will
     
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  7. Walygatr

    Walygatr Well-Known Member

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    Most pre nups don't include the riches made while married. She'll do alright.
     
  8. the G-man

    the G-man Well-Known Member

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    That's patently incorrect. one of the primary reasons for a big earner like Howard to have a prenup would be to avoid equitable distribution of all the money he made during the marriage.

    In fact, under New York State law any assets he acquired prior to the marriage would not be community property and so there would not really be a reason to have a prenup regarding those assets
     
  9. TallTyrion

    TallTyrion Triggered like a mofo VIP

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    he's signed 2 contracts since they've been married. He's also purchased at least 2 properties since then as well.


    She will probably go out and get Gloria Allred to really punish him.
     
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  10. the G-man

    the G-man Well-Known Member

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    See my post above. After acquired property can still be subject and typically is the subject of a prenuptial agreement
     
  11. FSFN

    FSFN Well-Known Member

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    Beth ain't goin nowhere! She's as relevant as gum stuck to my shoe.
     
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  12. TallTyrion

    TallTyrion Triggered like a mofo VIP

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    Most family law guys can shred a pre-nup.

    I don't know who could even comment on it intelligently, I can't
     
  13. the G-man

    the G-man Well-Known Member

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    I can. Written 'em. Interpreted 'em. Litigated 'em.
    As I said in my initial post the idea that "most family law guys can shred a prenup" is a complete fallacy.
     
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  14. Hugh Blowmont

    Hugh Blowmont Just be funny

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    She may not win, but a tried and true strategy is to litigate it anyway so the wealty, famous party could be damaged by information that comes out in discovery (adultery, drug use, odd behaviors, closeted homosexuality, etc), and force a bigger payday through that method.

    Bobby Flay had an ironclad prenup and ended up throwing more money at his ex to make her go away rather than damage his "good guy" brand.

    Based upon his track record, Howard has terrible representation for a man of his wealth and position. His lawsuit against Sirius should have been against his lawyers for malpractice for allowing him to sign a contract that did not spell out in absolutely clear terms what he was to get in the event Sirius merged, bought or was bought by XM.
     
  15. Donkeyboy2190

    Donkeyboy2190 Never earned a dimes

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    Was there a new blind item this week? I've seen it mentioned but didn't know if it was a new one or not.
     
  16. TallTyrion

    TallTyrion Triggered like a mofo VIP

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    so what are your credentials mr. big brain? or just some C&P magic?

    I feel like they ground out this pre-nup, she signed it because she's not very smart and when she finally gets a divorce, she will find a family law specialist that will find some way to shred it. I honestly don't think that Hmus wants to try anyone about this and they won't get divorced anytime soon, that's why he has 80 cats living at his fucking house.
     
  17. the G-man

    the G-man Well-Known Member

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    That might work, assuming there's not a ND clause and/or 'challenge clause' (i.e., she gets a certain payday under the prenup but less or none of she challenges it and loses).

    Actually the simple fact of the matter is that a prenup probably gives her a boatload of money, just not as much as everybody here likes to think she would get if she litigated. She would probably be stupid to try and set it aside.
     
  18. TallTyrion

    TallTyrion Triggered like a mofo VIP

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    some people thought it alluded to an affair between Hmus and the Turk.

    He's queer so there's zero point zero chance of that.
     
  19. the G-man

    the G-man Well-Known Member

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    Approximately 25 years practicing law in the state of New York.

    And as noted above the "cut-and-paste magic" is to the actual law from New York State.
     
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  20. TallTyrion

    TallTyrion Triggered like a mofo VIP

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