O'Malley v. O'Malley
| Decision Date | 05 June 2007 |
| Docket Number | 2006-05647.,2007-04841. |
| Citation | 2007 NY Slip Op 04805,41 A.D.3d 449,836 N.Y.S.2d 706 |
| Parties | LAURA GREY O'MALLEY, Respondent, v. RICHARD O'MALLEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the appellant.
In July 2005, after nearly 23 years of marriage, the husband and the wife entered into a postnuptial agreement (hereinafter the agreement), pursuant to which the husband, inter alia, surrendered his interest in the marital residence as a tenant by the entirety, any rights to equitable distribution of his interest in the marital residence as marital property in the event the parties divorced, and any rights to inherit from the wife. In exchange, the wife agreed to pay the husband the sum of $50,000 from a retirement account in 2015, when she could withdraw that sum without penalty. The agreement was prepared by the wife's counsel. The husband claims he had no independent counsel, and there is no evidence in the record that he had independent counsel.
Within three months of the execution of the agreement, the wife commenced the instant action for a divorce and ancillary relief. The husband counterclaimed for a divorce and, on the grounds, inter alia, of fraud, overreaching, lack of consideration and unconscionability, he moved, inter alia, to vacate the parties' postnuptial agreement and to rescind the transfer of the deed to the marital residence from the parties as tenants by the entirety to the wife individually. In support of his contentions, he asserted that the parties' equity in the marital residence was in the sum of at least $580,000, and that he was being asked to surrender his interest in the marital residence in consideration for the future receipt of the principal sum of only $50,000. The husband further noted that the agreement did not contain a reciprocal waiver by the wife of her rights to inherit from him. In addition, he contended that the wife promised not to seek a divorce if he signed the agreement, but breached that promise when she commenced this divorce action within three months of the execution of the agreement.
In opposition, the wife asserted that the agreement was fair. She further contended that she only decided to commence an action for a divorce when she discovered that the husband was continuing to engage in an extra-marital affair after the agreement was executed. In reply, the husband denied that allegation, which he characterized as a "blatant effort to disparage me."
The Supreme Court denied the husband's...
To continue reading
Request your trial
-
Maddaloni v. Maddaloni
...vast disparity in the parties' income and net worth (see Petracca v. Petracca, 101 A.D.3d 695, 956 N.Y.S.2d 77 ; O'Malley v. O'Malley, 41 A.D.3d 449, 451, 836 N.Y.S.2d 706 ; Siclari v. Siclari, 291 A.D.2d 392, 392–393, 736 N.Y.S.2d 908 ), and the defendant's overreaching in presenting the a......
-
Shah v. Mitra
...N.Y.2d at 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 ; see Infante v. Infante , 76 A.D.3d 1048, 1049, 908 N.Y.S.2d 263 ; O'Malley v. O'Malley , 41 A.D.3d 449, 451, 836 N.Y.S.2d 706 ; Frank v. Frank , 260 A.D.2d 344, 345, 686 N.Y.S.2d 309 ; see also Levine v. Levine , 56 N.Y.2d at 47, 451 N.Y.S.2d......
-
Petracca v. Petracca
...63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849;see Matter of Greiff, 92 N.Y.2d 341, 345, 680 N.Y.S.2d 894, 703 N.E.2d 752;O'Malley v. O'Malley, 41 A.D.3d 449, 451, 836 N.Y.S.2d 706;Manes v. Manes, 277 A.D.2d 359, 361, 717 N.Y.S.2d 185). Accordingly, “courts have thrown their cloak of protection” ......
-
Hershkowitz v. Levy
...any breach of fiduciary duty by the plaintiff."Postnuptial agreements are contracts which require consideration" ( O'Malley v. O'Malley, 41 A.D.3d 449, 451, 836 N.Y.S.2d 706 ). However, contrary to the defendant's contention, the parties' postnuptial agreement does not lack consideration. B......
-
§ 4.06 Distinguishing Between Premarital, Post-Marital and Reconciliation Agreements
...of an oral agreement the parties made before marriage, so the agreement was deemed a prenuptial contract.[368] O'Malley v. O'Malley, 41 A.D.3d 449, 836 N.Y.S.2d 706 (2007). [369] In a New Jersey case, the wife alleged that she signed a postnuptial agreement for this reason; the court did no......