Although it seems unlikely that George and Ira Gershwin were thinking of marital agreements when they penned the classic "Let’s Call the Whole Thing Off," the recent sound-alike decisions in Petracca v. Petracca1 and Cioffi Petrakis v. Petrakis,2 should cause both matrimonial attorneys and wealthy spouses contemplating marriage to consider "calling the whole thing off." The two cases indicate that prenuptial and early-marriage postnuptial agreements may no longer be viable tools to protect assets from equitable distribution. In both cases, the Second Department, apparently swayed by the individual equities, ignored settled legal doctrine, ruling in favor of the non-monied spouse, each of whom would have received an insignificant equitable distribution award if the respective agreements had been sustained.
Absent a reversal or meaningful modification,3 these decisions should cause matrimonial practitioners to reconsider: (a) their advice as to the future efficacy of such agreements as a tool for shielding assets from equitable distribution; and (b) the importance of insuring that every proposed equitable distribution (and maintenance) provision is sufficiently generous to discourage the court from substituting its retrospective judgment for that of the parties.
