P.B. v. L.B.

• Citation: 19 Misc.3d 186,855 N.Y.S.2d 836,2008 NY Slip Op 28030
• Decision Date: 16 January 2008
• Docket Number: 50261/2007
• Parties: P.B., Plaintiff, v. L.B., Defendant.
• Court: United States State Supreme Court (New York)

19 Misc.3d 186

855 N.Y.S.2d 836

2008 NY Slip Op 28030

P.B., Plaintiff, v. L.B., Defendant.

50261/2007

Supreme Court, Richmond County.

January 16, 2008.

Ursala Gangemi, PLLC, Brooklyn, for defendant.

Joseph Mainiero, New York City, for plaintiff.

OPINION OF THE COURT

DEBRA SILBER, J.

"[I]n New York State they have a strange law that says you can't get a divorce unless you can prove adultery. That is weird because the Ten Commandments say, "Thou shalt not commit adultery,' but New York State says you have to ... it's like a toss-up between God and [Governor] Rockefeller." (Woody Allen.)

In a matter involving a different comedian, whose marriage was also no longer in the "Honeymooners" stage (Gleason v Gleason, 26 NY2d 28 [1970]), Judge Fuld of the New York Court of Appeals, writing for the majority, noted that, in 1966, the New York State Legislature repealed the State's ancient divorce laws, which for almost 200 years had sanctioned divorce solely for adultery and enacted the Divorce Reform Law (L 1966, ch 254, eff Sept. 1, 1967) authorizing divorce on several other grounds. In addition to four enumerated grounds based on "fault," the new section 170 of the Domestic Relations Law specified two "nonfault" grounds predicated on a couple's living apart for a period of two years (subsequently reduced to one year [L 1970, ch 835, § 2]) after the granting of a separation judgment or decree (subd [5]), or the execution of a written separation agreement (subd [6]).

Outlining the public policy which underlies the concept of what we now call a "conversion divorce," Judge Fuld noted that, if a reconciliation has not been effected within the statutory period following the separation, "the Legislature has concluded, and reasonably so, that the parties are irreconcilable and the marriage dead." (Gleason v Gleason at 35.) Judge Fuld found that the legislative design was to render separation decrees and agreements a basis for divorce, and the "deliberate failure" of the legislators to provide any defenses to these grounds evinced and confirmed their intention of abandoning the traditional fault approach to divorce and permitting the termination of marriages if there was no longer a viable marriage. (Id.) The vital and operative requirement was that the parties live apart for at least the statutory period pursuant to a separation decree or agreement for which there is satisfactory proof of substantial performance. As Judge Fuld noted, the real purpose of the no-fault provisions was to sanction divorce on grounds unrelated to misconduct; the separation decree or agreement was simply intended as evidence of the authenticity and reality of the separation.

Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel parties to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them "to extricate themselves from a perpetual state of marital limbo." (Id., quoting Adelman v Adelman, 58 Misc 2d 803, 805 [Sup Ct, Queens County 1969].) In New York State, public policy encourages the dissolution of "dead" marriages. (Berman v Berman, 72 AD2d 425 [1st Dept 1980]; Covington v Walker, 3 NY3d 287 [2004].)

In the instant matter, defendant wife has filed a motion seeking dismissal of plaintiff's action for divorce. The parties were married in September of 1996. In July of 2005, the parties executed a written agreement of separation, and filed it with the Clerk of Richmond County. On page 14 of the separation agreement appears the following language: "It is agreed that the husband shall not pursue a divorce against the wife for a period of five years from the signing of this agreement except by prior written consent of the wife." On March 22, 2007, more than a year since its execution, plaintiff filed for divorce by summons with notice, on the stated grounds of abandonment, constructive abandonment, cruel and inhuman treatment and living apart for more than one year after execution of a separation agreement. In arguing that the matter be dismissed, defendant cites the above-described bar to filing for divorce as contained in the separation agreement, and states she has never given her husband the written consent required under the agreement. This is not disputed by the plaintiff. She also asks for attorney's fees, stating that, under the circumstances, the action for divorce is frivolous.

As noted, in arguing that the matter be dismissed, defendant cites the separation agreement, and states she has never given her husband the written consent required in the agreement. In response, plaintiff husband's attorney argues that his client executed the separation agreement without the advice or assistance of counsel. Despite the arguments of defendant's counsel that this assertion is hearsay, this fact is made explicit on page 11 of the separation agreement where it states, "The Husband has been advised to obtain counsel in order to represent her [sic] in all matters relating to this Separation Agreement."

Plaintiff's counsel further argues that the provision requiring plaintiff to wait five years before filing for divorce is, in effect, an improper injunction and restraint without a court order and that it violates existing law and section 6301 of the Civil Practice Law and Rules (as an injunction may only be issued in a pending action). (Granelli v Granelli, 134 AD2d 930 [4th Dept 1987].) He also argues that the agreement is void as against public policy as plaintiff cannot contract away an inalienable right. (See Matter of Liberman, 279 NY 458 [1939] [which did not allow a trust to restrain the right of its beneficiary to marry the person of one's choice].) He further argues that the provision in the contract is without consideration.

In reply, the defendant points out that the right to divorce in New York is not absolute (Domestic Relations Law § 170). Defendant argues that there is a public policy favoring contractual arrangements. She notes that New York has a strong public policy favoring individuals deciding their own arrangements through contractual arrangements (Matter of Greiff, 92 NY2d 341 [1998]) and that Domestic Relations Law § 236 (B) (3) authorizes spouses to contract out of the statutory system in the event that the marriage ends. (Matisoff v Dobi, 90 NY2d 127, 132 [1997].) Moreover, she points out that a party seeking to set aside a separation agreement has the burden to prove fraud, duress, or overreaching, or that the agreement or stipulation is unconscionable. (Wilson v Neppell, 253 AD2d 493 [2d Dept 1998].) The court finds the provision in question is unconscionable.

The defendant's motion is denied in its entirety. The provision in the separation agreement on which defendant relies is (1) void for being against public policy and unconscionable, and (2) void for attempting to circumvent the legislative prerequisite to divorce by separation for a minimum of one year to a minimum of five years by contract.

Marriage and divorce are matters which the State is deeply concerned about. (Christian v Christian, 42 NY2d 63 [1977].) Ordinarily, it is not the function of the law to protect people from their own foolishness, but a different standard is applied to marriage and divorce. (See Ezratty v Ezratty, 114 Misc 2d 22, 23 [Sup Ct, NY County 1982].) Generally, separation agreements which are written, signed and properly acknowledged are binding on the parties unless and until they are set aside. (See Schmelzel v Schmelzel, 287 NY 21, 26 [1941].) A court of equity does not limit its inquiry to determining the existence of a valid contract, but it further inquires into whether the contract (between husband and wife) was just and fair and equitably ought to be enforced and provides relief where both the contract and the circumstances require it. (Hendricks v Isaacs, 117 NY 411 [1889]; Christian v Christian at 65; Warren v Rabinowitz, 228 AD2d 492, 493 [2d Dept 1996]; Yuda v Yuda, 143 AD2d 657, 658 [2d Dept 1988]; Hardenburgh v Hardenburgh, 158 AD2d 585, 586 [2d Dept 1990].)

It has been held that "marriage is an institution of society, creating a status which may be regulated and controlled by public law; that legislation affecting the institution or annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts." (Tipping v Tipping, 82 F2d 828, 830 [DC Cir 1936].) Such agreements may be set aside under principles of equity. (Susquehanna S.S. Co. v Andersen & Co., 239 NY 285, 292-294 [1925].) It has been held that "[t]here is a strict surveillance of all transactions between married persons, especially separation agreements." (Christian v Christian at 72; Hendricks v Isaacs at 417.) Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract. (Hungerford v Hungerford, 161 NY 550, 553 [1900]; Christian v Christian at 72.) With these principles in mind, courts have thrown their cloak of protection over separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, and have refused to enforce those born of and subsisting in inequity. (Scheinberg v Scheinberg, 249 NY 277, 282-283 [1928]; Christian v Christian at 72; Yuda v Yuda, supra.)

To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if the settlement is unconscionable in that it is manifestly unfair to a spouse because of the other's overreaching (see Matter of Baruch, 205 Misc 1122, 1124, affd 286 App Div 869 [2d Dept 1955]). In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is any inference of overreaching in its execution (Christian v Christian at 72-73)....