unhealthy senior couple 2.jpgMarital financial planning is vital for spouses dealing with advanced age and deteriorating health.  Though not arising from an orchestrated plan, the February decision of the Appellate Division, Fourth Department, in Matter of Donald L.L. (Miceli), supports that planning.

After almost 40 years of marriage, the wife in 2005 suffered a stroke that left her with severe brain damage and unable to care for herself.  Her husband was also in poor health and was not capable of caring for his wife. In Guardianship proceedings, the court in 2008 determined that the wife was incapacitated and, by agreement of the husband, appointed someone other than the husband as the Guardian of the person and property of the wife.

At that time, as well, the husband entered a settlement with the Guardian resolving property and spousal support matters.  Their stipulation was “in the nature of an opting[-]out agreement as the same is provided for under the Domestic Relations Law. [They] do not intend to make this a divorce proceeding but would like [the stipulation] to serve as their agreement as to the issues . . . set forth [herein] and to that extent would also like to sign a written adoption of the oral stipulation.”

Five months later, the Guardian commenced this action seeking to enforce the financial settlement agreement. The Guardian also sought to void various allegedly fraudulent transfers by the husband. Justice David Michael Barry upheld the financial settlement agreement.

On appeal, the husband contended that Justice Barry erred when he granted the Guardian relief in the form of equitable distribution without conducting a hearing on the economic issues between him and his wife.

The Fourth Department affirmed. The agreement was enforceable.  No separate equitable distribution relief or hearing was required as there had been, expressly, no action to abrogate the marital status.

Upholding protective and necessary financial arrangements, while preserving lengthy marriages, is increasingly necessary.  Such arrangements, when knowingly entered with independent counsel, are to be promoted.