Sandra Foley (Respondent) v. Denis Foley (Appellant) (App Div., 3rd Dep’t)

Plaintiff (hereafter “the wife”) and the defendant (hereafter “the husband”) were married in 1987.  Prior to the parties’ marriage, they executed a pre-marital agreement, which was intended to “fix and delineate certain of their respective rights, claims and obligations.”  The wife commenced the action for divorce in June 2014.

The Court states that a prenuptial agreement, like any contract, “will be construed in accord with the parties’ intent, which is generally gleaned from what is expressed in its writing.  Consequently a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.”  The primary argument between the parties’ was as to whether or not the Husband’s pension and deferred compensation accounts were his separate property.  The prenuptial agreement specifically listed categories of assets that the parties’ intended to be separate property; the categories were cash, securities, brokers margin accounts, accounts receivable, business interests, cash surrender value of life insurance, vehicles and vested interests in trusts.

The Court determined that the prenuptial agreement did not specifically disclose pension and/or retirement accounts as part of a very specific list of assets that the parties’ chose to disclose as separate property in their prenuptial agreement.  As such, the Court ruled that the Husband’s pension and deferred compensation plans were not his separate property as he did not disclose them under the parties’ prenuptial agreement.  The key takeaway is that in drafting the prenuptial agreement, the husband failed to fully disclose all of his assets that he wanted to deem as his separate property.

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