In its September 18, 2013 decision in Abramson v. Gavares, the Second Department briefly reviewed the interplay between prenuptial agreements and interim awards in divorce actions.

In this case, the parties were married in 2004 and hade one child, born in 2006. This divorce action was commenced in 2009 [before the 2010 laws on counsel fees and temporary maintenance].

On the wife’s motion for various relief pendente lite, Nassau County Supreme Court Justice Margaret C. Reilly had awarded the wife $4,250 per month temporary child support, $1,000 per month in temporary maintenance, and a $15,000 interim counsel fee. The husband was also directed to pay 100% of the costs of the court-appointed forensic evaluator and the attorney for the parties’ child.

On appeal, the husband challenged certain parts of the award on the basis of the prenuptial agreement entered into by the parties. The Second Department upheld the awards of child support and counsel fees, but struck the award of temporary maintenance.

The appellate court noted that “as with all contracts, prenuptial agreements are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing . . . Where a prenuptial agreement is clear and unambiguous on its face, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties’ reasonable expectations are met.”

Contrary to the husband’s contention, the Second Department held that the parties’ prenuptial agreement did not expressly preclude an award of temporary maintenance, nor did the wife expressly waive such an award under the terms of the agreement.

Nonetheless, the Second Department struck the $1,000 per month temporary maintenance award. The court noted that pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the paying spouse.

Here, pursuant to certain provisions of the prenuptial agreement, the husband had made a lump sum payment of $172,215 to the wife and continued to make payments to her of $7,175 per month. Thus, on the record presented, including evidence of the wife’s expenses, the wife’s reasonable needs were more than adequately met. Accordingly, under the circumstances of this case, Justice Reilly improvidently exercised her discretion in directing the plaintiff to pay temporary maintenance in the sum of $1,000 per month.

However, Justice Reilly’s award to the wife of $15,000 in interim counsel fees was upheld, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the husband’s obligation to pay such fees incurred by the wife in any divorce action.

Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field, the determination of whether to enforce an agreement waiving the right of either spouse to seek an award of an attorney’s fee is to be made on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced.

Here, the parties were involved in extensive litigation concerning child custody, a matter not expressly addressed in their prenuptial agreement. Moreover, the husband’s net worth was more than $13 million and his monthly gross income exceeded $45,000. The wife had no income other than what she was receiving pursuant to the agreement.

Under those circumstances, Justice Reilly providently exercised her discretion to award the wife $15,000 in interim counsel fees. The appellate noted that contrary to the husband’s contention, the award properly included, as a component thereof, counsel fees that the wife incurred defending against a petition for a writ of habeas corpus that the husband filed during the pendency of this divorce action.

[The Court’s initial emphasis on the “level playing field” public policy, rather than the fact that the custody issue was not covered by the prenuptial agreement (as in Vinik v. Lee, 96 A.D.3d 522, 522-523 (2012), represents a continuation of its policy to scrutine contractual limitations of counsel fees (see Kessler v Kessler, 33 A.D.3d 42, 47 [2006]). The enforceability of any agreement’s limitation of fees is questionable.]

Moreover, the Second Department upheld Justice Reilly’s award of interim child support of $4,250 per month in light of the parties’ combined parental income, which greatly exceeded the $136,000 statutory cap. [$4,250 per month is 17% (the formula percentage for the one child) of $300,000 per year.]

Additionally, under the circumstances of this case, the Second Department upheld, as a proper exercise of discretion, Justice Reilly’s direction to the husband to pay 100% of the costs of a court-appointed forensic evaluator and an attorney for the parties’ child.

Lee Rosenberg and Joseph J. DiPalma, of Saltzman Chetkof & Rosenberg, LLP, of Garden City, represented the husband. Glenn S.  Koopersmith, of Garden City, was of counsel to the Law Office of Mona Zessimopoulos, P.C., of Bayside,  represented the wife.