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.