Prenuptial Agreement.jpgThe premarital agreement of the parties limited their rights to obtain spousal support upon divorce. It also contained a waiver of their rights to counsel fees.

Nevertheless, recently-retired New York County Supreme Court Justice Saralee Evans awarded the wife $6,000 per month in unallocated pendente lite support (an award not specifying how much of it was spousal maintenance and how much was child support). Justice Evans also made two separate awards of interim counsel fees to the wife, each in the sum of $25,000.

In its June 12, 2012 decision in Vinik v. Lee, the Appellate Division, First Department, affirmed.

While the parties’ premarital agreement limits their rights to obtain spousal support and waives their rights to counsel fees, it does not bar temporary relief, including temporary maintenance [and] interim counsel fees.

The appellate court specifically noted that the parties’ agreements did not address custody and child support. Therefore, the waiver of counsel fees did not apply to counsel fees related to litigating child custody and support issues.

Moreover, the First Department noted that Justice Evans made her counsel fee awards based on a proper consideration of the financial circumstances of both parties together with all the other circumstances of the case. Justice Evans also properly considered the fees necessitated by the husband’s litigation tactics and to ensure that the litigation would not be “shaped . . . by the power of the bankroll” (quoting the Court of Appeals decision in O’Shea v. O’Shea, 93 N.Y.2d 187 [1999]).

The appellate court noted that under Illinois law, which governed the parties’ agreement, the result would be the same. In that state, a ban on a counsel fee award in a premarital agreement is not enforceable as to child-related issues. That would violate public policy. Moreover, Illinois law also permits an interim counsel fee award where the parties have waived counsel fees in an agreement.

The wife was represented by Nina S. Epstein of Goldweber Epstein LLP; the husband was represented by Kevin M. McDonough of Stein Riso Mantel, LLP; both of New York City.