Once the Marriage Ends

Statutory Impediments

There are also statutory barriers to a complete, unfettered, and iron-clad waiver of future spousal support. First, the duty to support a spouse in need (i.e., one in danger of becoming a public charge) cannot be contracted away. See General Obligations Law ' 5-311 (spouses “cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge”). Second, Domestic Relations Law (DRL) ' 236 (B)(3) requires that an agreement which includes a provision addressing the amount and duration of spousal support is “subject to the provisions of ' 5-311 of the general obligations law,” and such terms must be “fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.” Consequently, while parties are free to include waivers of future spousal support in prenuptial agreements, they should be aware that those waivers are not (and, under the law, cannot be) absolute.

Next month, we will discuss how the general rules concerning the support of an ex-spouse are sometimes more flexible than we thought, as when a court may refuses to enforce a prenuptial agreement, or declines to modify an award to require additional support despite the recipient's being a public charge.

Alton L. Abramowitz, a partner at Mayerson Abramowitz & Kahn, LLP, and a member of this newsletter's Board of Editors, is scheduled to become the President of the American Academy of Matrimonial Lawyers in November of this year. Leigh Baseheart Kahn, also a firm partner, is recognized by both Best Lawyers and Super Lawyers. Atty Bruggemann, an associate of the firm, is the primary author of this article.

A marriage is many things: Primarily, one hopes, it is a source of emotional support and companionship. However, it is also, without doubt, an economic partnership, as this state's highest court has made clear. See O'Brien v. O'Brien , 489 NE2d 743, 747 (1985) (noting that “[e]quitable distribution was based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker”). While a dissolution of that partnership is designed to terminate the economic bonds between the spouses ' “implicit in the statutory scheme as a whole, is the view that upon dissolution of the marriage there should be a winding up of the parties' economic affairs and a severance of their economic ties by an equitable distribution of the marital assets” (Id.) ' that is not always the case, especially where one spouse is economically incapable of self-support. The duty to support a spouse has long been recognized by the State of New York, with the Court of Appeals noting that
“[a]limony when awarded, is not in the nature of payment of a debt as in that of the performance of a duty.” Romaine v. Chauncey, 129 NY566 (1982). It is true that alimony has been replaced under the Equitable Distribution Law with the concept of spousal maintenance, which was designed to provide the payee spouse with the opportunity (and incentive) to achieve economic independence. However, the fundamental concept of a spouse's duty to provide support has not changed.

The Prenuptial Agreement: Not Always Inviolable

Spouses-to-be who wish to alter this fundamental duty to provide support may, prior to marriage, enter into a prenuptial agreement in an effort to limit it, or to eliminate it altogether. However, in terms of support, such efforts at controlling the dissolution of the economic partnership may not always be fully successful, for a variety of reasons. For example, spouses-to-be may not fully contemplate the impact that having children may have on the career (and thus the ability to self-support) of a spouse who chooses to remain a stay-at-home parent; or the impediment to future self-support that may be caused by an unanticipated disability that arises during the marriage.

Statutory Impediments

There are also statutory barriers to a complete, unfettered, and iron-clad waiver of future spousal support. First, the duty to support a spouse in need (i.e., one in danger of becoming a public charge) cannot be contracted away. See General Obligations Law ' 5-311 (spouses “cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge”). Second, Domestic Relations Law (DRL) ' 236 (B)(3) requires that an agreement which includes a provision addressing the amount and duration of spousal support is “subject to the provisions of ' 5-311 of the general obligations law,” and such terms must be “fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.” Consequently, while parties are free to include waivers of future spousal support in prenuptial agreements, they should be aware that those waivers are not (and, under the law, cannot be) absolute.

Next month, we will discuss how the general rules concerning the support of an ex-spouse are sometimes more flexible than we thought, as when a court may refuses to enforce a prenuptial agreement, or declines to modify an award to require additional support despite the recipient's being a public charge.

Alton L. Abramowitz, a partner at Mayerson Abramowitz & Kahn, LLP, and a member of this newsletter's Board of Editors, is scheduled to become the President of the American Academy of Matrimonial Lawyers in November of this year. Leigh Baseheart Kahn, also a firm partner, is recognized by both Best Lawyers and Super Lawyers. Atty Bruggemann, an associate of the firm, is the primary author of this article.