In a premarital agreement, the parties are not married, but plan to be. In a property settlement agreement, the parties are married, but plan to be divorced. By contrast, a midnuptial agreement is typically intended to cover those situations where the parties did not enter into a premarital agreement before getting married, want to remain married and have no present intention of getting divorced, but are still concerned about the what if of divorce. I ve read Pacelli, and it refused to uphold a midnuptial agreement. It does, however, mean that matrimonial attorneys have to be especially careful when counseling clients who are contemplating them.
Every case contains unique facts and circumstances.
What is fair in one context may be unconscionable in another. One thing is for sure, after Pacelli. Unlike premarital agreements, it is no longer enough that a midnuptial agreement was fair when negotiated and executed. It must also be fair when being performed. It should not be difficult for a creative lawyer to suggest various forms of unfairness , resulting just from the mere passage of time.