Whitmore v. Whitmore, 2003-08557.

Citation8 A.D.3d 371,2004 NY Slip Op 04705,778 N.Y.S.2d 73
Decision Date07 June 2004
Docket Number2003-08557.
PartiesHOLLY T. WHITMORE, Respondent, v. JOHN W. WHITMORE, Appellant.
CourtNew York Supreme Court Appellate Division

Ordered that the order is affirmed, with costs.

The parties were married on January 28, 1984. Approximately three months after their marriage, the parties executed a document entitled "Marital Agreement" (hereinafter the postnuptial agreement) in which the wife waived her right to any business property owned by the husband, regardless whether it was acquired before or after the marriage.

In October 2002 after approximately 18 years of marriage the wife commenced a divorce action against the husband on the grounds of adultery and cruel and inhuman treatment. The husband moved for summary judgment, in effect, dismissing certain causes of action based on a determination that the postnuptial agreement, which was executed by both parties, was valid and enforceable, and the wife cross-moved to dismiss an affirmative defense alleging that the postnuptial agreement precluded certain claims. The Supreme Court found that the postnuptial agreement was not binding because it lacked consideration. We agree.

In New York, postnuptial agreements are specifically authorized by Domestic Relations Law § 236 (B) (3). Postnuptial agreements are contracts (see Lesesne v Lesesne, 292 AD2d 507, 508 [2002]), are subject to ordinary principles of contract interpretation (see Cappelli v Cappelli, 286 AD2d 359 [2001]), and require consideration (see 2 Lindey & Parley, Separation Agreements and Antenuptial Contracts § 120.53 [5], at 120-20 [2d ed]). Consideration exists if there is a "benefit to the promisor or a detriment to the promisee" and "`[i]t is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him'" (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 464 [1982], quoting Hamer v Sidway, 124 NY 538,...

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14 cases
  • Balogh v. Balogh
    • United States
    • Supreme Court of Hawai'i
    • August 11, 2014
    ...past consideration cannot support a current promise. See Bratton v. Bratton, 136 S.W.3d 595, 600 (Tenn.2004) ; Whitmore v. Whitmore, 8 A.D.3d 371, 778 N.Y.S.2d 73, 75 (2004).19 In Bratton, a husband signed a letter in which he promised "never to be the cause of a divorce." Bratton, 136 S.W.......
  • In re Marriage of Tabassum and Younis
    • United States
    • United States Appellate Court of Illinois
    • December 7, 2007
    ...not a reconciliation agreement, and wife's promise to remain in the marriage was not consideration), and Whitmore v. Whitmore, 8 A.D.3d 371, 372, 778 N.Y.S.2d 73, 75 (N.Y.App.2004) (mere continuation of marriage was not adequate consideration for postnuptial agreement in which wife released......
  • Petracca v. Petracca
    • United States
    • New York Supreme Court Appellate Division
    • December 5, 2012
    ...v. Rauso, 73 A.D.3d 888, 889, 902 N.Y.S.2d 573;Cioffi–Petrakis v. Petrakis, 72 A.D.3d 868, 869, 898 N.Y.S.2d 861;Whitmore v. Whitmore, 8 A.D.3d 371, 372, 778 N.Y.S.2d 73). However, “[a]greements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring ......
  • Cohen v. Cohen
    • United States
    • New York Supreme Court Appellate Division
    • September 11, 2014
    ...to the consummation of future conditions and additional agreements. The agreement also lacked consideration ( see Whitmore v. Whitmore, 8 A.D.3d 371, 778 N.Y.S.2d 73 [2nd Dept.2004] ). Accepting defendant's consent to the divorce in exchange for the financial payments would have been agains......
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