Is it possible to get a post-nuptial agreement overturned?

[Conciencia]

Can a post-nuptial made 10 years ago ever be deemed unenforceable or void? The signer was healthy and made a good salary, now he is sick (had massive heart attack, brain surgery and has kidney cancer). He is required by the post-nuptial agreement to provide life and health insurance. The life insurance is now 1/3 of his monthly income, health insurance for his ex-wife another 1/4 of his income. He gave up all property in the divorce per the agreement and now at age 62 has pretty much nothing.

It looks like it might be considered unconscionable. It certainly is now, and probably was at the time of signing. Neither party had legal representation. And he feels he signed it under duress. (Not sure if this matters, but the divorce was caused by wife's infidelity and drug use. Since the signing wife has obtained Phd. and has her own therapy practice. She is 10 years younger and in good health. She could obtain health insurance now at a reason rate through the Affordable Health Care program.)

 

[Proserpina]

This is not something that a message board could help with, unfortunately. He needs to speak with a local attorney immediately. There is no way we could say "yes" or "no".

 

[fredrikklaw]

You Can Avoid The Contract!

CONCIENCIA:

The best way to approach this dilemma is to first and foremost understand the nature and quality of the subject matter which will then allow you to fashion an appropriate remedial (legal) maneuver based on proper, cognitive, and recognizable statutes, procedural law, and the available remedies. Because, you will not have much joy if you were to walk into court to ask to "overturn" a "nuptial agreement."

That said, regardless of its title; be it a pre nuptial, post nuptial, lease hold, I.O.U., a parking lot ticket, airline ticket, or a raffle ticket, it is at the end of the day just a good ol' garden verity CONTRACT; the basic tenets of a contract are promises, formation, performance, avoidance, breach, and remedies and from the information you have provided, your best and only shot at relief from this post nuptial is to invoke two of the nine (9) elements that make up avoidance which are Impossibility and Frustration of Purpose.

Frustration of purpose when properly averred, excuses the petitioner from continuation of performance because of events and occurrences beyond his control which will make the performance also inequitable and unjust. Especially given the fact that the ex-wife is now a Ph.D. and gainfully employed with perhaps little or no need for payments from a disabled and terminally ill party to the contract.

I think you stand an excellent chance of having the agreement cancelled on this basis, but make sure that you provide notice and opportunity before discontinuing payments on the Life Insurance policies and whatever other obligation he has under the agreement.

By the way, frustration of purpose and impossibility are affirmative defenses which will come into play if the ex-wife does not agree with the reasoning given in the notice and decides to foolishly commence suit.

fredrikklaw