JM v. GV, 2025 NY Slip Op 25004 – NY King Co. Supreme Court 2025:
“….
Full Presumptive Maintenance Calculations
Parties are entitled to opt-out of the post-divorce maintenance
computational formula established in Domestic Relations Law § 236
provided that the parties comply with Domestic Relations Law §
236(B)(3). Domestic Relations Law § 236(B)(3) states that:
“An agreement by the parties, made before or during the
marriage, shall be valid and enforceable in a matrimonial action if such
agreement is in writing, subscribed by the parties, and acknowledged or
proven in the manner required to entitle a deed to be recorded. Such an
agreement may include provision for the amount and duration of
maintenance or other terms and conditions of the marriage relationship,
subject to the provisions of section 5-311 of the general obligations
law, and provided that such terms were fair and reasonable at the time
of the making of the agreement and are not unconscionable at the time of
entry of final judgment.”
In the case at bar, under Section 6 of the prenuptial agreement,
entitled “SPOUSAL MAINTENANCE”, page 13, after recitation of the
maintenance guidelines, the maintenance provision provides:
“[defendant-husband] will neither seek nor require any maintenance,
temporary, permanent or otherwise, or support for himself from
[plaintiff] and, therefore, no provision for support or maintenance for
[defendant-husband] is made herein.” Further, the “Opting Out
Provisions”, on page 14, states: “[e]ach party acknowledges that he/she
has been advised of the provisions of New York Domestic Relations Law
§236, Part B, Section 5-a (the “Temporary Maintenance Presumption”),
including as amended in June 2015 and signed into law in September 2015,
as well as the provisions of New York Domestic Relations Law §236, Part
B, Section 6 (Post-Divorce Maintenance Presumption”), which relate to
the presumptive correct amount of temporary and post-divorce
maintenance, and each party specifically waives and opts out of the
application of the Temporary Maintenance Presumption, the Post-Divorce
Maintenance Presumption as well as ongoing support or spousal
maintenance of any kind.”
Defendant contends that he waived his right to spousal support
without knowledge of what he would potentially have been entitled to
under the post-divorce maintenance formula contained in the Domestic
Relations Law. In opposition, plaintiff’s counsel makes the distinction
between settlement in matrimonial cases and prenuptial agreements
arguing that, for settlement in matrimonial cases “the parties are
obligated to run the presumptive calculation and explain whether there’s
a conforming or a deviation from the guideline” [T. 7/16/2024, p.22,
17-19], however, plaintiff’s counsel contends that there is no such
affirmative requirement for prenuptial agreements. Plaintiff’s counsel
argues that prenuptial agreements should only be guided under the
construction of contracts and are not bound by the maintenance
guidelines statute. Defendant’s counsel argues that “if a knowing waiver
is needed in the context of a separation agreement or a stipulation of
settlement by a Pro Se litigant, I am not sure why that wouldn’t extend
to a prenuptial agreement, which is going to be incorporated into a
judgment that is enforced ultimately” [T. 7/16/2024, p.22, 17-19].
The Court rejects plaintiff-wife’s contentions. Waiver of maintenance
under the maintenance guidelines statute is predicated upon what can be
termed “knowing waiver” of what the guidelines sum of maintenance would
be but for the waiver. The statute expressly provides that the
calculation must be fully articulated where there is a self-represented
party (see Domestic Relations Law § 236(B)(6)(g)).
This requirement is intended to ensure that litigants who do not have
the benefit of legal counsel have a full and fair opportunity to know
what they may be entitled to under the maintenance guidelines statute in
the form of an explicitly articulated sum. Only after such an
articulated sum is detailed can a self-represented party or parties make
a “knowing waiver” of that right. Without an expressly articulated sum
resulting from the statutory calculation, any “waiver” by a
self-represented litigant is, pursuant to the statute, not knowingly
made.
To satisfy the knowing waiver aspect of the maintenance guidelines
statute, both parties must provide their incomes and the full
calculation, as of the time they enter into the prenuptial agreement,
where either or both parties are self-represented because without the
inclusion of incomes as of the date of the agreement and the full
calculation under the guidelines statute formula, there could be no
knowing waiver because the guidelines sum of maintenance would not be
explicitly known and, as such, the parties could not expressly waive it (see generally Spiegel v. Spiegel, 206 AD3d 1178 [3 Dept.,2022]).
Plaintiff argues, in effect, that it is harmless error that the
calculation is not included because parties’ incomes may change over
time and there is no assurance that the calculation as of the date
parties enter into a prenuptial agreement will remain relevant as of the
date a party moves to enforce the prenuptial agreement; however, the
statute requires only that waiver be knowing made at the time it is
waived.
It would be antithetical to the protections of the maintenance
guidelines statute to hold that the requirement for knowing waiver for
self-represented litigants does not apply to prenuptial agreements.
Here, the prenuptial agreement recites the statutory formula;
however, neither party’s income as of the time they entered into the
agreement is included. Without incomes provided, there was no way to
include the full calculation of the maintenance guidelines sum and
without that sum there could be no knowing waiver. Moreover, because the
full presumptive maintenance calculations were not provided to the
defendant, who was not represented by legal counsel, the entire
provision related to spousal maintenance must be vacated. The Court
notes in section 11, pages 18-19 of the parties’ prenuptial agreement
there is a severability clause, which would render the remainder of the
agreement enforceable (see Spiegel v. Spiegel, 206 AD3d 1178, 1183 [3d Dept 2022]; see also Christian v. Christian, 42 NY2d 63, 73 [1977]); Matter of Wilson’s Estate, 50 NY2d 59, 65 [1980]).
In light of the court’s decision to vacate the spousal maintenance
provision in the parties’ prenuptial agreement, the Court need not
address the defendant-husband’s contention relating to whether the
maintenance provision was unconscionable.
Compliance with General Obligations Law 5-311
It is well-established that there can be no waiver of maintenance
where it would place either party at risk of becoming a public charge (see General Obligations Law 5-311). General Obligations Law 5-311 provides, as relevant hereto:
“… a husband and wife 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.”
Here, the provision purporting to relieve the parties of any right to
provide maintenance to the other provided no representation as to
either parties’ income as of the date of the agreement and made no
affirmative representation as to whether the alleged waiver of support
would not render either party a public charge. As such, the Court cannot
find that the waiver did not also violate GOL 5-311 (see generally Bloomfield v. Bloomfield, 97 NY2d 188 [2001]). In Bloomfield,
the Court of Appeals found that even if a party had knowingly waived a
right to receive support under existing law at the time, the validity of
support waivers in marital agreements are still governed by General
Obligations Law 5-311 prohibition against contracts that relieve either
spouse — husband or wife — from a requirement to support where doing so
may make the other spouse a public charge (id. at 194). The Court
notes that the general statement in section 10 (“Financial Disclosure”)
on page 18 of the parties’ agreement that “[e]ach party is fully
informed of the income, assets, property and financial prospects of the
other” is insufficient, alone, to satisfy the obligation of the Court to
ensure compliance with GOL 5-311.
The Court finds that defendant has made a prima facie showing that he
is entitled to summary judgment on the issue of the prenuptial
agreement and maintenance. Plaintiff’s opposition is insufficient to
defeat summary judgment on the issue of maintenance. As such, the Court
grants partial summary judgment to the defendant on the issue of
vacating the prenuptial agreement “waiver” of maintenance: the
determination of and calculation of maintenance is hereby referred to
the trial court, subject to any pendente lite application prior thereto.
……”