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Prenuptial Agreement

Pre Nuptial Agreement Reaches Post Nuptial Infamy

by Emma L. Whitley

As a family law practitioner and a self-proclaimed connoisseur of pop culture, I’ve been paying close attention to the all the media coverage surrounding Tricia Walsh-Smith — you know, the spurned wife who has taken her divorce and prenup woes to YouTube.

In case you missed it, here’s a recap:

In early April 2008 Walsh-Smith, a former actress/playwright and spouse of nine years to Philip Smith, president of Broadway powerhouse the Shubert Organization, divulged the details of her divorce in a YouTube video. The inspiration for Walsh-Smith’s rant — a clause in the parties’ pre-nuptial agreement that called for Walsh Smith to be evicted from the Park Avenue apartment she inhabited with a mere thirty days notice.

In the video, shot from the Park Avenue apartment in question, Walsh-Smith revealed intimate facts about the couple’s marriage, stating that she never had sex with her husband (25 years her senior). At one point in the video Walsh- Smith gets on the speaker phone and calls her husband’s assistant inquiring what should be done with her estranged husband’s pornography collection and condom stash. The title of this six minute video was “Poor, vulnerable Tricia: One More Crazy Day in the Life of a Phoenix Rising from the Ashes.” In the clip, Walsh-Smith even goes so far as to make pleas to the public to help contribute to a tent fund stating that she will be left out on the street if evicted. Walsh-Smith also criticizes her stepdaughters calling them “nasty and evil,” complaining about how they might get her husband’s millions instead of her.

Round 2. Walsh-Smith followed the first video with a second YouTube posting on April 26, 2008. In this video Walsh-Smith criticized YouTube viewers and the media for their lack of sympathy and support.

Contrary to her belief, the court of public opinion does not have the jurisdiction to hear Walsh-Smith’s case, so on April 28, 2008, a Manhattan Supreme Court Judge ruled that Walsh-Smith isn’t allowed to have a crew film her complaints in the Park Avenue apartment. However, the bitter wife is free to film more videos, just in a different setting.

So is it time to make a contribution to the tent fund and for Walsh-Smith to get out the camping gear? Not quite. According to the terms of the prenuptial agreement, in the event of a divorce (or her husband’s death) Walsh-Smith is to receive the couple’s home in Florida and $500,000 a year. However, much to Walsh-Smith’s chagrin, the bulk of her husband’s estate is to go to his daughters from a previous marriage.

Talk about an ugly divorce. Thankfully, the terms of the purported ‘iron-clad” prenuptial agreement should define the terms of the settlement. At least, that’s the genreral rule in New Mexico unless the agreement is found to be in vioaltion of the law.

Pursuant to the Uniform Premarital Agreement Act 403A-1 to 40-3A-10 NMSA 1978, a premarital agreement must be in writing, signed by both parties, acknowledged, and is enforceable without consideration.

  • Parties to a premarital agreement can contract with respect to:
  • Rights and obligations of each of the parties regarding property of either or both of them whenever and wherever acquired or located;
  • The right to buy sell, manage, control, etc. property;
  • The disposition of property upon separation, divorce, death or the occurrence or non occurrence of any other event;
  • The making of a will, trust, or other mechanism to carry out provision in the agreement;
  • Ownership rights and disposition of the death benefit from a life insurance policy;
  • Choice of law governing the agreement; and
  • The catch all provision—any other matter not in violation of public policy.
  • Parties CANNOT, however, enter into an agreement that will adversely affect the right of child or spousal support.

The burden to prove unenforceability of a prenuptial agreement is on the party challenging the agreement. An agreement is seen as unenforceable when:

  • The agreement was not executed voluntarily; and
  • The agreement was unconscionable when executed and before execution of the agreement, the challenging party: was not provided a fair and reasonable disclosure of the other party’s property of financial obligations, did not waive in writing that disclosure, or could not have had adequate knowledge of said disclosure.

The issue of unconscionability or voluntariness of a premarital agreement is an issue for the Court.

So as you set this article down and take to your computer to Google “YouTube divorce” just remember a prenuptial agreement can save you from Court, but nothing can save you from the Internet.

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