As noted in the previous blog, agreements 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). 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.
The court noted that three months had elapsed after an admonition from the mediator parties about the changes and conditions under which the mediator would conclude the matter. The wife had more than sufficient time to have the proposed agreement reviewed by an attorney and to have agreed to its terms.
An agreement is not unconscionable because there is an unequal division of assets or because some of its provisions may have been “improvident or one-sided” …; overreaching is not established by the fact that a party was not represented by counsel, especially when the party was fully informed of his/her right to retain counsel and proceeded without obtaining an attorney.
Allegations of spousal abuse relevant to the signing of the agreement were not provided by the wife. The husband’s alleged “demands” that the wife sign the agreement did not amount to duress. By its own terms, the agreement contained an acknowledgment that the wife was aware that she had the right to obtain counsel, that she knew and understood what she was signing, and that she was entering into the agreement “freely and voluntarily.”
Finally, Justice Gazzillo noted that parties had lived under the Separation Agreement for more than three years without dispute. Thus, the court held, the wife had ratified the agreement by complying with its terms, and accepting it required payments until over two years after its execution. Accordingly, summary judgment dismissing the complaint was granted.