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Judge rejects wife’s attack on prenup agreement

Peter Vieth//November 25, 2019

Judge rejects wife’s attack on prenup agreement

Peter Vieth//November 25, 2019

Seal_of_FairfaxA Fairfax County judge says he will enforce a prenuptial agreement that keeps a divorcing husband’s business assets out of the reach of his wife. The wife failed to show her agreement to the prenup was either involuntary or unconscionable, the judge ruled.

When they married, the groom was a 45-year-old millionaire. A key detail in the decision was the 25-year-old bride’s accounting degree.

The ruling came in a Nov. 19 opinion from Fairfax Circuit Judge Brett A. Kassabian in the case of Dwoskin v. Dwoskin (VLW 019-8-106).

20-year age gap

The key facts are described in the opinion. Real estate developer Albert Dwoskin had a net worth of about $25 million in 1988 as he prepared to enter his third marriage at age 45. He planned to marry his 25-year-old former office receptionist, now known as Lisa Dwoskin.

Despite the 20-year age difference, Lisa was “intellectually compatible” with Albert, the judge determined. She was a college graduate who earned an accounting degree with honors. She regularly traveled with Dwoskin to various properties and reviewed his financial documents.

She was well acquainted with Dwoskin’s assets, sharing his $2 million McLean mansion and flying with him in his $500,000 private jet. She stayed with him at a Jamaica residence where Dwoskin had a half interest.

Not involuntary

Despite the couple’s lavish lifestyle, the marriage now appears to be under strain. Albert Dwoskin sought to affirm the enforceability of a 1988 prenuptial agreement in a declaratory judgment action. Kassabian heard evidence over two days in October and received briefs from the parties.

The judge concluded the prenup was valid and enforceable.

The standard is set by Virginia Code § 20-151(A): A premarital agreement generally is not enforceable if the opponent proves she did not sign voluntarily or proves the agreement is unconscionable with a lack of fair disclosure. Proof must be by clear and convincing evidence.

Kassabian first determined such proof was lacking for Lisa’s claim that she signed involuntarily.

“In particular, the Court rejects Plaintiff’s contention as not credible that she had no previous knowledge of the need or terms of the Agreement until first confronted in the hectic days immediately prior to the wedding,” Kassabian wrote.

Although the agreement was signed just days before the marriage, the couple began their relationship five years prior during the husband’s separation from his second wife. Albert Dwoskin repeatedly stated over those five years that he would never marry again without a prenuptial agreement, the judge said.

The terms were discussed in the spring of 1988, Kassabian said. The husband’s assets in his business would remain his assets. Joint assets would be divided up. Alimony would be deferred. “The parties agreed upon the terms,” Kassabian said.

In the summer, the couple went to the office of “Attorney Ward.” The wife rejected husband’s offer to seek independent counsel. Each signed a document waiving their rights to independent counsel.

The terms were set out as the couple discussed. “Ward’s role that of a scrivener,” Kassabian said. They signed on Sept. 22, 1988.

“The Court finds that there was neither coercion nor surprise in the terms, presentation or execution of the Agreement,” the judge wrote.

The signed counsel waiver was lost, however. The wife testified that the husband said the agreement would be unenforceable for lack of independent counsel. She contended the couple never met with the lawyer.

Kassabian rejected that testimony as “incredible and self-serving.”

Moreover, despite the 20-year age difference between the parties, “Plaintiff was no naïve and unsophisticated 25-year-old,” the judge said.

“On the contrary, the Court finds Plaintiff was a sophisticated and intelligent person who was intellectually compatible with Defendant, despite the difference in age,” Kassabian wrote. “She was fully and adequately aware of his economic worth and in fact testified that his substantial wealth did not factor into her desire to marry him.”

Not unconscionable

Kasabian acknowledged a large disparity in assets at the start of the marriage as he considered the wife’s contention the agreement was unconscionable.

“Defendant owned his own company and Plaintiff has an Accounting degree with no debt and a luxury vehicle and jewelry,” the judge summarized. But the agreement was not unusual, Kassabian found. There was no prohibition of spousal support. The wife could seek equitable distribution of any later-acquired joint property.

“Under these facts there is nothing extraordinary about the benefits protected by Defendant to keep his separate premarital assets separate. There is not a gross disparity in the division of the assets,” the judge wrote.

Kassabian found no overreaching or oppressive influences. “Plaintiff was, contrary to her testimony, an active participant in the negotiation and preparation of the Agreement.”

The judge rejected the wife’s claim of lack of disclosure. She was given a detailed financial statement as of June 30, 1988, he said, despite its inadvertent omission of the Jamaica property and the private jet.

The ruling on the prenuptial agreement merely sets the stage for divorce litigation to come, according to James R. Cottrell of Alexandria, the wife’s counsel.

“This is merely an interlocutory order in an ongoing case. I cannot comment publicly on any case that has not been finally decided, and this one has a long way to go,” Cottrell said.

“Challenges to prenuptial agreements are not uncommon, said Sarah E. Mancinelli of Washington, who represents the husband along with Matthew W. Edwards of her firm.

“The law in Virginia favors their enforcement assuming they are executed under the appropriate circumstances,” she added. “There is a good deal of case law on the subject and it would be advisable for any practitioner to be familiar with the law when considering a challenge to an agreement or having to defend its validity.”

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