Once the Marriage Ends

Couples often enter into prenuptial agreements in an effort to control their financial responsibilities in the event of a divorce. Or they place their reliance on settlement agreements or judicial support awards, thinking that these have set in stone their continuing support obligations. But, of course, many of these arrangements are vulnerable to change.

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 N.Y. 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, N.Y. 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.

Overturning a Waiver of Maintenance: Changed Circumstances

The recent First Department case of Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012), provides an example of a situation in which the waiver of spousal support in a prenuptial agreement may not be enforceable. In Barocas, the parties entered into a prenuptial agreement on Nov. 1, 1995, two weeks before their marriage. The agreement contained a mutual waiver of maintenance and a mutual waiver of equitable distribution. It also required the wife, in the event of a break-up, to return any and all jewelry and gifts given to her by the husband both before and during the marriage. The wife challenged the agreement based on the circumstances surrounding its execution and the husband's alleged over-reaching. In making these arguments she claimed, among other things, that the husband had hired her attorney, for whom he paid; and that he led her to believe that if she did not sign the agreement, there would be no wedding.

The First Department agreed with the motion court that the property provisions of the agreement should be upheld, holding that “[a]lthough application of the provisions would result in [the husband] retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided.” 94 AD3d at 551. However, the First Department also agreed with the motion court that “[a]lthough [the wife's] waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues exist as to whether the waiver would be unconscionable as applied to the present circumstances.” 93 AD3d at 552.

The “present circumstances” included the fact that the wife was 50 years old and was unemployed (as she had been for the duration of the marriage, other than “sporadic attempts at small business ventures”). She possessed a GED but had no higher education or special skills, and, under the prenuptial agreement, was only to receive her individual retirement account in the amount of $30,550. The husband on the other hand, was a successful businessman and was to retain approximately $4,600,000 in assets pursuant to the prenuptial agreement (more than $4 million of which was accumulated during the marriage).

In Barocas, it was unclear, despite the fact that the child support award had not yet been determined, whether the wife was in danger of becoming a public charge in the absence of an award of spousal support. (It is interesting to note that the Appellate Division seemed to have considered the fact that there had not yet been an award of child support when thinking about whether the wife would become a public charge without spousal support. Presumably, if the amount of child support for the support of two children was adequate to support not only the children but also the wife, then the maintenance waiver of the prenuptial agreement may have been validated; this, even though such an outcome would, necessarily, involve a child support award serving partially as the very spousal support that the wife had waived ' an incongruous result.)

The obligation on a spouse to support the other spouse, if he or she is in danger of becoming a public charge, takes precedence over any other potential obligor. Between the spouse and the state, in general, it is the spouse who must provide support for his or her former spouse, and any agreement to provide for a spouse cannot limit that obligation so as to render a spouse without sufficient means or so as to render them a public charge. Consequently, under the factual circumstances existing at the time that the agreement was to be enforced, the husband in Barocas was not able to rely upon the maintenance waivers of the parties' prenuptial agreement as a shield against the wife's attempt to obtain an award of spousal support.

In February of this year, a New York appellate court affirmed a Nassau County lower court's decision to set aside the prenuptial agreement of Elizabeth Petrakis, a woman dubbed by ABC News as the “Long Island Millionare's Wife.” Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2nd Dept. 2013)).' The case involved a prenuptial agreement that the woman signed just days before marrying her multimillionaire husband in 1998. The woman was not presented with the prenuptial agreement until six weeks prior to the wedding and at first she refused to sign it.

Four days before the big day, the woman reportedly finally signed it when her fianc' threatened to call off the wedding, much of which her father had already paid for, and told her that he would tear up the prenup when they had children. But the man, who is worth $20 million, did not tear up the prenup when they started their family; and years later when they were divorcing he wanted to enforce it.

The woman went before a judge and argued that the prenuptial agreement, which is a legal contract, was not valid due to fraud and inducement. She claimed that her husband never intended to keep his promise to rip up the agreement when they had children. New York appeals court ultimately agreed that the man's false promises were fraudulent inducement, and decided to void the prenuptial agreement.

When Unchanged Circumstances Support a Denial of Additional Support

It should be noted that while the terms of a duly executed prenuptial agreement may be insufficient to shield a spouse from a legal duty to support a spouse in danger of becoming a public charge, there may be some limitations on this rule. A post-judgment case presented an unusual set of factual circumstances, demonstrated that the passage of time, coupled with the long-standing duration of a former spouse's need, can serve as a shield against a greater duty to provide financial support. In Jan S. v. Leonard S., 26 Misc. 3d 243 (Sup. Ct. N.Y. Cty. 2009), the parties, who were married for only 13 months when they separated in September 1967 and were divorced, after trial, in 1974. The judgment of divorce required the husband to pay lifetime alimony to the wife of $100 per week. At the time that the judgment was issued, the wife was already receiving public assistance, and had been for approximately three years.

Over the intervening years between 1974 and 2009, the wife had made at least four applications for an upward modification of the husband's support obligations based upon changed circumstances that included becoming homeless and a determination that she suffered from a mental disability. All of these attempts to increase the alimony award were denied.

The matter came before the trial court after a hearing by a referee to address four questions contained in the order of reference; chief among them was whether the former wife was in danger of becoming a public charge. Asked by the husband to confirm the referee's report, which found that there were no changed circumstances and that the wife was not entitled to an upward modification of support, the judge addressed what he called the “one fundamental issue which goes to the heart of the matter ' whether the ex-husband is responsible for the needs of the ex-wife ' irrespective of how great his financial resources are or how dire her needs may be ' simply because they were married to each other for a short period of time in the long distant past.” 26 Misc.3d at 244.

The answer, he concluded, is that the former husband was not, in fact, responsible for any greater amount than he had been directed to pay 35 years earlier ' a time when the former wife was already on public assistance and, consequently, already a public charge. The court held that, under the very atypical circumstances existing in the matter, the former husband should not be “any more responsible than society as a whole for what has happened to the ex-wife ' [n]o matter how great the ex-wife's difficulties may be, her life is not the ex-husband's cross to bear. There is no reason why he should shoulder any greater responsibility for her than he already has.”

Case-by-Case Examination of Circumstances

In Barocas, the husband undoubtedly believed that by entering into a prenuptial agreement in which his wife waived her right to maintenance, he had eliminated his obligation to provide her with any support once their marriage ended. That waiver, however, could not shield him from a close examination of the parties' respective financial circumstances at the time that he sought its enforcement ' when the parties' respective circumstances were significantly different from those at the time of the execution of the agreement ' to ensure that the waiver was not unconscionable. In Barocas, therefore, the fact that the parties' respective circumstances had significantly changed rendered unsound the husband's certainty that the wife's waiver of maintenance protected him.

In Jan S., the former husband had faithfully paid the spousal support set by a judgment of divorce entered in 1974, and was faced with repeated attempts by the wife to upwardly modify that award, even decades later. The former husband was able to withstand those repeated attempts because, unlike in Barocas, the wife's circumstances in Jan S. had not significantly changed since the husband's support obligation was fixed; she was already a public charge when the judge issued his decision, and had been so since 1971, three years prior to the issuance of the judgment of divorce. In the absence of substantially changed circumstances, the husband would not be charged with any greater responsibility for her support than that upon which he had been entitled to rely since 1974.

Read together, therefore, the cases of Barocas and Jan S. underscore the critical importance of changes in circumstances in the context of a spouse's duty to support the other spouse. On the one hand, a substantial change of circumstances can be sufficient to render a spouse's waiver of maintenance unconscionable and, consequently, void; on the other, the lack of a substantial change of circumstances, particularly coupled with the passage of significant time, can absolve a spouse of any greater duty of support, even when society as a whole is required to pick up the financial slack.

Conclusion

The message to those attempting to fix their post-divorce support obligations in a prenuptial agreement negotiated and executed prior to the marriage, therefore, is to be thoughtful, to be thorough, and to fully contemplate the full panoply of events that might occur between marriage and divorce to affect a party's ability to support himself or herself in the event of a divorce.

Alton L. Abramowitz, a partner at Mayerson Abramowitz & Kahn, LLP is the President of the American Academy of Matrimonial Lawyers. 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.

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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 New York 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.

Couples often enter into prenuptial agreements in an effort to control their financial responsibilities in the event of a divorce. Or they place their reliance on settlement agreements or judicial support awards, thinking that these have set in stone their continuing support obligations. But, of course, many of these arrangements are vulnerable to change.

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 N.Y. 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, N.Y. 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.

Overturning a Waiver of Maintenance: Changed Circumstances

The recent First Department case of Barocas v. Barocas , 94 AD3d 551 (1st Dept. 2012), provides an example of a situation in which the waiver of spousal support in a prenuptial agreement may not be enforceable. In Barocas, the parties entered into a prenuptial agreement on Nov. 1, 1995, two weeks before their marriage. The agreement contained a mutual waiver of maintenance and a mutual waiver of equitable distribution. It also required the wife, in the event of a break-up, to return any and all jewelry and gifts given to her by the husband both before and during the marriage. The wife challenged the agreement based on the circumstances surrounding its execution and the husband's alleged over-reaching. In making these arguments she claimed, among other things, that the husband had hired her attorney, for whom he paid; and that he led her to believe that if she did not sign the agreement, there would be no wedding.

The First Department agreed with the motion court that the property provisions of the agreement should be upheld, holding that “[a]lthough application of the provisions would result in [the husband] retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided.” 94 AD3d at 551. However, the First Department also agreed with the motion court that “[a]lthough [the wife's] waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues exist as to whether the waiver would be unconscionable as applied to the present circumstances.” 93 AD3d at 552.

The “present circumstances” included the fact that the wife was 50 years old and was unemployed (as she had been for the duration of the marriage, other than “sporadic attempts at small business ventures”). She possessed a GED but had no higher education or special skills, and, under the prenuptial agreement, was only to receive her individual retirement account in the amount of $30,550. The husband on the other hand, was a successful businessman and was to retain approximately $4,600,000 in assets pursuant to the prenuptial agreement (more than $4 million of which was accumulated during the marriage).

In Barocas, it was unclear, despite the fact that the child support award had not yet been determined, whether the wife was in danger of becoming a public charge in the absence of an award of spousal support. (It is interesting to note that the Appellate Division seemed to have considered the fact that there had not yet been an award of child support when thinking about whether the wife would become a public charge without spousal support. Presumably, if the amount of child support for the support of two children was adequate to support not only the children but also the wife, then the maintenance waiver of the prenuptial agreement may have been validated; this, even though such an outcome would, necessarily, involve a child support award serving partially as the very spousal support that the wife had waived ' an incongruous result.)

The obligation on a spouse to support the other spouse, if he or she is in danger of becoming a public charge, takes precedence over any other potential obligor. Between the spouse and the state, in general, it is the spouse who must provide support for his or her former spouse, and any agreement to provide for a spouse cannot limit that obligation so as to render a spouse without sufficient means or so as to render them a public charge. Consequently, under the factual circumstances existing at the time that the agreement was to be enforced, the husband in Barocas was not able to rely upon the maintenance waivers of the parties' prenuptial agreement as a shield against the wife's attempt to obtain an award of spousal support.

In February of this year, a New York appellate court affirmed a Nassau County lower court's decision to set aside the prenuptial agreement of Elizabeth Petrakis, a woman dubbed by ABC News as the “Long Island Millionare's Wife.” Cioffi-Petrakis v. Petrakis , 103 A.D.3d 766 (2nd Dept. 2013)).' The case involved a prenuptial agreement that the woman signed just days before marrying her multimillionaire husband in 1998. The woman was not presented with the prenuptial agreement until six weeks prior to the wedding and at first she refused to sign it.

Four days before the big day, the woman reportedly finally signed it when her fianc' threatened to call off the wedding, much of which her father had already paid for, and told her that he would tear up the prenup when they had children. But the man, who is worth $20 million, did not tear up the prenup when they started their family; and years later when they were divorcing he wanted to enforce it.

The woman went before a judge and argued that the prenuptial agreement, which is a legal contract, was not valid due to fraud and inducement. She claimed that her husband never intended to keep his promise to rip up the agreement when they had children. New York appeals court ultimately agreed that the man's false promises were fraudulent inducement, and decided to void the prenuptial agreement.

When Unchanged Circumstances Support a Denial of Additional Support

It should be noted that while the terms of a duly executed prenuptial agreement may be insufficient to shield a spouse from a legal duty to support a spouse in danger of becoming a public charge, there may be some limitations on this rule. A post-judgment case presented an unusual set of factual circumstances, demonstrated that the passage of time, coupled with the long-standing duration of a former spouse's need, can serve as a shield against a greater duty to provide financial support. In Jan S. v. Leonard S. , 26 Misc. 3d 243 (Sup. Ct. N.Y. Cty. 2009), the parties, who were married for only 13 months when they separated in September 1967 and were divorced, after trial, in 1974. The judgment of divorce required the husband to pay lifetime alimony to the wife of $100 per week. At the time that the judgment was issued, the wife was already receiving public assistance, and had been for approximately three years.

Over the intervening years between 1974 and 2009, the wife had made at least four applications for an upward modification of the husband's support obligations based upon changed circumstances that included becoming homeless and a determination that she suffered from a mental disability. All of these attempts to increase the alimony award were denied.

The matter came before the trial court after a hearing by a referee to address four questions contained in the order of reference; chief among them was whether the former wife was in danger of becoming a public charge. Asked by the husband to confirm the referee's report, which found that there were no changed circumstances and that the wife was not entitled to an upward modification of support, the judge addressed what he called the “one fundamental issue which goes to the heart of the matter ' whether the ex-husband is responsible for the needs of the ex-wife ' irrespective of how great his financial resources are or how dire her needs may be ' simply because they were married to each other for a short period of time in the long distant past.” 26 Misc.3d at 244.

The answer, he concluded, is that the former husband was not, in fact, responsible for any greater amount than he had been directed to pay 35 years earlier ' a time when the former wife was already on public assistance and, consequently, already a public charge. The court held that, under the very atypical circumstances existing in the matter, the former husband should not be “any more responsible than society as a whole for what has happened to the ex-wife ' [n]o matter how great the ex-wife's difficulties may be, her life is not the ex-husband's cross to bear. There is no reason why he should shoulder any greater responsibility for her than he already has.”

Case-by-Case Examination of Circumstances

In Barocas, the husband undoubtedly believed that by entering into a prenuptial agreement in which his wife waived her right to maintenance, he had eliminated his obligation to provide her with any support once their marriage ended. That waiver, however, could not shield him from a close examination of the parties' respective financial circumstances at the time that he sought its enforcement ' when the parties' respective circumstances were significantly different from those at the time of the execution of the agreement ' to ensure that the waiver was not unconscionable. In Barocas, therefore, the fact that the parties' respective circumstances had significantly changed rendered unsound the husband's certainty that the wife's waiver of maintenance protected him.

In Jan S., the former husband had faithfully paid the spousal support set by a judgment of divorce entered in 1974, and was faced with repeated attempts by the wife to upwardly modify that award, even decades later. The former husband was able to withstand those repeated attempts because, unlike in Barocas, the wife's circumstances in Jan S. had not significantly changed since the husband's support obligation was fixed; she was already a public charge when the judge issued his decision, and had been so since 1971, three years prior to the issuance of the judgment of divorce. In the absence of substantially changed circumstances, the husband would not be charged with any greater responsibility for her support than that upon which he had been entitled to rely since 1974.

Read together, therefore, the cases of Barocas and Jan S. underscore the critical importance of changes in circumstances in the context of a spouse's duty to support the other spouse. On the one hand, a substantial change of circumstances can be sufficient to render a spouse's waiver of maintenance unconscionable and, consequently, void; on the other, the lack of a substantial change of circumstances, particularly coupled with the passage of significant time, can absolve a spouse of any greater duty of support, even when society as a whole is required to pick up the financial slack.

Conclusion

The message to those attempting to fix their post-divorce support obligations in a prenuptial agreement negotiated and executed prior to the marriage, therefore, is to be thoughtful, to be thorough, and to fully contemplate the full panoply of events that might occur between marriage and divorce to affect a party's ability to support himself or herself in the event of a divorce.

Alton L. Abramowitz, a partner at Mayerson Abramowitz & Kahn, LLP is the President of the American Academy of Matrimonial Lawyers. 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.

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