Legal Question in Family Law in New York

Re: are personal contracts binding prior to marriage

This one could go either way.

1. You will argue that the marriage is an intervening event. It represents substantial compliance with the 5 year agreement.

2. The parents will argue lack of privity of contract and for strict construction of the written instrument.

The DRL suggests that nthe 72,000 is separate property, and that is not how you will want to argue the case. You want the 72 to be categorized as a gift to both of you with a condition subsequent that it be applied to a residential real estate.

The parents have an easy argument, but your 'substantial compliance' should not be underestimated. This case could go either way.

Are there other assets? Children?

You are welcome to a consultation for no fee. Email is best.

Re: are personal contracts binding prior to marriage

Two important questions must be answered: (1) is the agreement a valid contract?; and (2) if so, is the contract enforceable.

Depending upon all of the facts and circumstances, the contact may not be valid.

Furthermore, since you are divorcing you are entitled to equitable distribution. The apartment may be subject to such distribution.

If you do not have an attorney for the divorce, you should retain one. Without good legal guidance, your spouse could take advantage of you.

If you need an attorney, please feel free to contact me. Please visit my website for more information: www.odlaw.net.

Re: are personal contracts binding prior to marriage

In order to access your rights on this contract, we would also have to discuss your rights in connection with the divorce. Though independent situations, the cases are so related that the should be considered together.

Let me know if I can be of help.

Daniel Clement

Re: are personal contracts binding prior to marriage

I believe it very unlikely the Court will view the $72,000.00 as anything other than a LOAN.

Nor, do I think it likely the Court will consider your marriage as "subtanial compliance" with the 5 year condition to waive repayment, since your relationship and marriage, altogether, from the loan date to the end of your marriage, is less than 5 years. Further, parents do not have any obligation to give or create a "gift" of anything, to a child's mate or partner, whether married or not.

Courts rarely change or cancel the terms of an agreement or "Note" to repay a loan, that was clearly evidenced by a writing, that it is a loan, even if the repayment terms, include "precedent and subsequent conditions," that waive repayment.

Thus, if the conditions and loan terms are clear and not illusory, are not repugnant, not against public policy, the intention of the parties,(as evidenced by the writing) controls, and will be legally binding.

Alternatively, the Court will decide that the $72,000.00 is fully recoverable by your husband, as his "family money" is the source and as such is his separate cash contribution to acquisition of the apartment; with the balance of the premise equity, if any, to be "equitably" distributed between the two of you, upon a Court Ordered sale, transfer or purchase of the premises, in order to effect the distribution.

In NY "Equitable distribution" essentially refers to an asset distribution formulae, between the parties, that is porportionate to their direct and indirect contributions to the acquisition or maintenance of their marital and separate property, during the marriage). It is not necessarily "equal distribution" and it is not supposed to provide unfair or inequitable advantage to one party over the other parties' assets.

Good luck,

Phroska L. McAlister,ESQ