The November 12, 2014 decision of the Appellate Division, Second Department, in Bibeau v. Sudick reversed the granting of summary judgment upholding the validity a 2000 prenuptial agreement, remanding the matter for a hearing on that issue.

In September 28, 2000, two days before their wedding, the 70-year old future husband and the 38-year old future wife executed a premarital agreement. It provided that in the event of a divorce, the wife would receive, in lieu of maintenance, support, and equitable distribution, the sum of $25,000 for each year of the marriage. The parties also agreed to waive their interest in the elective share of each other’s estate, and to make no claim to property titled in the other’s name.

According to financial statements attached to the premarital agreement, the future husband had assets of more than $10,000,000, while the future wife had assets of approximately $170,000. The agreement was signed in the office of the husband’s attorney, in the presence of another attorney who was purportedly representing the wife.

At the time of the marriage, the wife, who had a background in marketing works of fine art to corporations, had recently opened an art gallery in California. She closed this business and relocated to Pine Bush, New York, in order to reside with the husband in preparation for their marriage, and assist him in his business endeavors. These included real estate development, as well as breeding thoroughbred horses and managing polo ponies.

In October, 2010, within days of New York’s adoption of no-fault divorce, the husband commenced this action for divorce. There were no children of the marriage.

Continue Reading Another Prenup Bites the Dust, Maybe

After surgically excising eight words, Saratoga County Supreme Court Justice Thomas D. Nolan, Jr., in his February 7, 2014 decision in Zinter v. Zinter, upheld the balance of a prenuptial agreement. Those words had given the husband the unconscionable power to control whether earnings and other after-marriage acquired property would be placed into joint or indiviual accounts, and thus marital or separate property.

In this divorce action, the parties were married on December 23, 2005. The wife was then 29 years old, a music teacher with a Master’s degree, and reported a net worth of $71,500.00. The husband was then 35 years old, a college graduate, and an officer and part owner of his family-owned and operated business, with a reported net worth of approximately $2.7 million.

The husband had retained an attorney to prepare a prenuptial agreement. In November 2005, both the prospective husband and prospective wife met with that attorney to review the proposed agreement. At the time, the wife was not represented by counsel. The husband’s attorney provided the wife with the names of three attorneys experienced in matrimonial law. Shortly thereafter, she retained one of them, with whom the wife met three times before the agreement was signed four days before the marriage.

Continue Reading Court Strikes Prenup Provision Giving Husband the Power to Determine Whether After-Marriage Acquired Property was Marital or Separate

The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held Westchester County Supreme Court Justice Lawrence H. Ecker in his January 16, 2014 opinion in A.B. v. Y.B.

The couple involved separated after 12 years of marriage. Following three years of mediation, the parties entered into an agreement that resolved issues of custody and access to the parties’ three children, maintenance, child support, and equitable distribution. The husband is a 50% equity partner in a brokerage firm. The wife is owner and operator of her own business.

Upholding the agreement, Justice Ecker took pains to quote several of its provisions. One acknowledged that the parties had waived the “compulsory financial disclosure” requirements of the Domestic Relations Law and court rules, and agreed not to exchange Net Worth Statements. Nonetheless, the parties represented to each other that each made a full and complete disclosure of assets, liabilities, income and expenses, and that they relied on the information provided.

The agreement recited the husband’s disclosure, to the best of his knowledge, of his gross personal 2010 income as approximately $156,427.00. The parties agreed to use the 2010 income because their 2011 income was not yet available. The Husband disclosed that in no event was his income from any and all sources more than $156,427.00 in said year.

Nonetheless, for purposes of the agreement, the parties agreed to use an imputed income of$1,200,000 in computing the child support calculation under the Child Support Standards Act.

The parties acknowledged that they reached their agreement with the aid of the mediator, but that the mediator provided no legal representation to either of the parties. Further, although “the mediator may have provided information or opinions concerning the state of the law generally, neither party has relied upon such information or opinions in executing this Agreement.”

The parties further represented that each had ample opportunity to obtain independent legal counsel, and counsel [apparently recommended by the mediator] for each spouse was named.

As to the basic child support obligation, the agreement provided it was agreed that the the husband’s would pay $29,500 per month [$354,000 per year] for 12 years, 5 months, subject to a cost of living increase biennially. The husband was further responsible for 100% of discretionary expenses and add-on expenses, including private school tuition for all three children, private college expenses, camp and summer programs, religion education expenses, Bar and Bat Mitzvah expenses, health insurance and unreimbursed medical expenses.

Continue Reading Claimed Ignorance of C.S.S.A. Treatment of Income Over Cap Not Basis to Set Aside Divorce Settlement Agreement

In its February 20, 2013 decision in Cioffi-Petrakis v. Petrakis, the Second Department affirmed the decision of former Nassau County Supreme Court Justice Anthony J. Falanga which set aside the parties’ prenuptial agreement. Indeed, decisions over the past year indicate that there may be a pendulum swinging towards easing the burden on the party (generally, the wife) attacking such agreements.

For example, in its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing some 16 years earlier (see the blog post of December 10, 2012: “Postnuptial Agreement Vacated for Overreachong 16 Years After Entry).

In Cioffi-Petrakis, the wife contended that her husband had reneged on his oral promise to tear up their prenuptial agreement once she had children made shortly before the pre-nuptial agreements’s execution (the parties now have two sons and a daughter). That promise was not referenced in the parties’ written agreement entered just four days before the parties’ marriage. Moreover, the parties had disclaimed reliance upon oral statements by either party, a relatively standard provision in the agreement, itself. Nevertheless, the Second Department agreed with Justice Falanga that the evidence supported the wife’s claim that she had been fraudulently induced to accept the deal.

Ironically, three years earlier (72 A.D.3d 868, 898 N.Y.S.2d 861), the Second Department affirmed Justice Falanga’s prior order dismissing the wife’s causes of action which attacked the very same agreement on the grounds of unconscionability. There, the Second Department was satisfied with the record’s demonstration that the wife was represented by independent counsel during the prenuptial agreement negotiations (her counsel signed the agreement as a witness). Moreover, the agreement itself recited that the wife entered into it “freely, voluntarily and with full knowledge of all circumstances having a bearing on this agreement.” At that time, the Second Department opined that the wife was provided with meaningful bargained-for benefits, including a one-third interest in one of the defendant’s businesses. The wife had advanced nothing but conclusory and unsubstantiated assertions insufficient to defeat the husband’s motion for summary judgment dismissing the cause of action to set aside the parties’ prenuptial agreement on the ground of unconscionability.

Continue Reading Is it Open Season on Prenuptial Agreements?

contract ripped by angry woman.jpgIn its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing.

Four months after the parties’ 1995 marriage, they entered into a postnuptial agreement. The agreement provided that the jointly-owned marital residence, which had just been purchased for approximately $3.1 million and which was subsequently renovated at a cost of between $3 million and $5 million, was the husband’s separate property.

The agreement further provided that if the parties divorced, the wife, who had not been employed other than as a homemaker since just before the marriage, would waive her interest in any business in which the husband had an interest, including any appreciation in the value of such interests accruing during the marriage. At the time the agreement was entered into, the husband valued his interests in these business entities at over $10 million. The wife also waived any and all rights she had to the husband’s estate, including her right to an elective share. At the time the agreement was entered into the husband valued his net worth at more than $22 million.

Finally, the agreement provided that if the parties divorced, the wife would waive maintenance, except in the sum of between $24,000 and $36,000 per year, for varying lengths of time, depending on the duration of the marriage.

In 2008, the wife commenced this action for a divorce. In his answer, the husband sought enforcement of the postnuptial agreement. A hearing was held to determined its validity.

The wife testified that her husband had bullied her into signing agreement, shortly after she had suffered a miscarriage, by threatening that they would not have any children and that the marriage would be over if she did not sign. The wife further testified that she signed the agreement within days of receiving it and, although she reviewed some portions of it, she did not understand its terms and did not consult an attorney. At the hearing, the wife also demonstrated that the statement of the husband’s net worth contained in the agreement was inaccurate at the time it was made, and was undervalued by at least $11 million.

For his part, the husband denied any knowledge of his wife’s miscarriage. He had wanted the postnuptial agreement in order to protect his son from a prior marriage. The husband testified that the parties had discussed the issue of entering into a postnuptial agreement prior to the marriage and that they had negotiated the postnuptial agreement over the course of many weeks.

The husband’s attorney drafted the agreement. Although she had not disclosed the name, the husband believed that his wife had consulted with her own attorney.

Continue Reading Postnuptial Agreement Vacated for Overreaching 16 Years After Entry


When your lawyer tells you that you are about to make a really bad deal, you disregard that advice at your peril.

That is one lesson to be learned from a split-decision of the Appellate Division First Department in its April 17, 2012 decision in Barocas v. Barocas. The court affirmed a decision of Supreme Court New York County Justice Ellen Gesmer which for the most part denied a wife’s attack on the prenuptial agreement she signed with her future husband in 1995.

Their marriage two weeks after the agreement was signed is now ending in divorce. Under the parties’ agreement, Deborah Barocas will not receive any maintenance (personal support). (The agreement contained no provision regarding the support for the parties’ two children.) Moreover, under the agreement, Deborah will also not share in any property accumulated by Victor during the marriage. Indeed, the agreement provided that Deborah would forfeit any gifts or jewelry she had been given by Victor before and during the marriage. Over their 15 years of marriage, Victor accumulated some $4,600,000 in assets, while Deborah had only $30,550 in an I.R.A.

Deborah was born in Guyana, the second of seven children. She arrived in the United States in 1981, at the age of twenty-one. She obtained a GED in 1982, and worked menial jobs. In 1989, she worked part-time as a receptionist for Victor’s family business. While working there, the parties began to date. In 1993, she moved into Victor’s Sutton Place apartment. Other than sporadic attempts at small business ventures, Deborah did not work outside the home for the duration of the marriage. She has no further education and no special skills.

Now attacking that agreement, Deborah noted that she has no other assets or sources of income. She alleged that she can no longer work, as she is now 50 years old and that her husband had thwarted her efforts to get a college education and pursue a career during the marriage.

The three-judge majority of this five-judge appellate court upheld Justice Gesmer’s decision to uphold the property division provisions of the prenuptial agreement. With regard to those provisions, Deborah Barocas failed to establish that her execution of the agreement was the result of inequitable conduct on her husband’s part. Rather, the parties fully disclosed their respective assets and net worth.

Moreover, the agreement was reviewed by independent counsel. Indeed, Deborah’s own lawyer admittedly had told her that the agreement was “completely unfair” and advised against signing it. The fact that the husband’s attorney recommended the wife’s attorney, and that the husband paid Deborah’s counsel’s fees, was insufficient to demonstrate duress or overreaching sufficient to base an attack upon the agreement.  Still further, the claim that Deborah believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, was an insufficient basis to attack the agreement on the grounds of duress.

Although application of the provisions would result in plaintiff [husband] retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided . . . . The circumstances surrounding the execution of the agreement disclose no issue of fact as to whether there was overreaching. We therefore adhere to the general rule that “‘[i]f the execution of the agreement . . . be fair, no further inquiry will be made’. . . .

Continue Reading Signing a Prenuptial Agreement Against the Advice of Counsel Bars Subsequent Attack

As noted in the previous blog, Gazzillo Ralph.jpgagreements which resolve marital rights and obligations are encouraged. They will be enforced absent demonstrable improprieties.

In his January 23, 2011 decision in Capone v. Capone (pdf), Suffolk County Supreme Court Justice Ralph T. Gazzillo granted summary judgment dismissing a wife’s action to rescind and declare null and void a November, 2008 Separation Agreement.

In January, 2010 the husband commenced an action for divorce based on the parties living separate and apart pursuant to that agreement for a period in excess of one year (“grounds” for divorce under Domestic Relations Law §170[6]). The wife responded by bringing her own action in February, 2011 attacking the agreement on the grounds that it was the result of overreaching, coercion, and undue influence. She also alleged that it was manifestly unfair, unjust, inequitable and unconscionable.

The husband moved for summary judgment dismissing the wife’s action. Justice Gazzillo noted that summary judgment is a drastic remedy, only to be granted in the absence of any triable issues of fact. Justice Gazzillo held that the wife failed to demonstrate that the agreement was unfair when made or that there was overreaching in its execution. Quoting the 1977 decision of the Court of Appeals in Christian v.Christian, 42 NY2d 63, 396 NYS2d 817, Justice Gazzillo stated:

Judicial review of separation agreements is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions.

Here, the parties’ Separation Agreement had been entered with the assistance of Divorce Mediation Professionals (Lenard Marlow, J.D.). The parties only entered their agreement following at least 10 conferences, letters between the parties and the mediator, revisions, a written suggestion by the mediator to the wife that she consult with her own attorney to discuss changes to the agreement, and the valuation of the husband’s pension.

Continue Reading Wife's Attack on 2-Year-Old Mediated Separation Agreement Summarily Dismissed