NEW YORK DIVORCE - A PRENUP WAIVER OF SPOUSAL MAINTENANCE ALSO NEEDS THE FULL CALCULATION

JM v. GV, 2025 NY Slip Op 25004 - NY King Co. Supreme Court 2025:

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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.

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