Kuharski Levitz & Giovinazzo

Where the results of a 2007 prenuptial agreement waiver of maintenance would be a risk that a mother of three children would become a public charge, the agreement would be set aside for being unconscionable at the time of divorce. So held the Appellate Division, Second Department, in its January 10, 2018 decision in Taha v. Elzemity.

The parties were married in 2007, and had three children. Shortly before their marriage, they entered into a prenuptial agreement. The agreement provided, inter alia, that each party waived the right to the other’s separate property in the event of separation or divorce; each party would keep separate bank accounts; and the husband’s maintenance obligation would be limited to a lump sum payment of $20,000.

In 2008, the parties moved into the marital residence, which was purchased with funds from the husband’s bank account, and the deed and mortgage were placed solely in his name.

The husband had been practicing medicine since 1987 and earned approximately $300,000 annually. The wife, who had been employed part-time as a sales person when the parties met, did not work outside the home during the marriage, but dedicated herself to the care of the household and the parties’ children, one with special needs.

In October 2013, the husband commenced this divorce action. The wife moved to set aside the prenuptial agreement, among other grounds, because it was unconscionable. The husband cross-moved for summary judgment determining that the prenuptial agreement was valid and enforceable. After a hearing, Supreme Court, Richmond County Justice Catherine M. DiDomenico found that the prenuptial agreement was not unconscionable. The wife appealed.

The Second Department reversed. It noted that:

An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse.

Further, the Court stated, “an agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.” Moreover:

An agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered.

Here, the appellate court held that the wife met her burden of proof as to unconscionability. Contrary to the lower court’s determination, the wife established that the prenuptial agreement was, at the time this action was before the court, unconscionable.

Enforcement of the agreement would result in the risk of the wife’s becoming a public charge. The wife, who was unemployed, largely without assets, and the primary caregiver for the parties’ young children, would, under the prenuptial agreement, receive only $20,000, in full satisfaction of all claims, even though the husband earns approximately $300,000 annually as a physician. Accordingly, the wife’s motion to set aside the prenuptial agreement should have been granted.

Catherine S. Bridge, of Staten Island, represented the wife. Arnold E. DiJoseph, P.C., of Manhattan, of counsel to Kuharski, Levitz & Giovinazzo, represented the husband.