Matisoff v. Dobi

In May 1981, plaintiff and defendant, recently married, entered into an agreement whereby each party pledged neither to hold nor to acquire "any right, title or claim in and to the real and personal estate of the other solely by reason of the marriage of the parties”. This agreement was made at the insistence of plaintiff, who, concerned about defendant’s two unsuccessful previous marriages and other personal matters, 201 wished to protect her real property and other assets in the event that the marriage ultimately floundered. The agreement was drafted by an attorney friend of plaintiff and executed at the attorney’s New York City office. At the time of this agreement, each party’s income was approximately $40,000, and plaintiffs income has remained stable since that time. Defendant, however, earned an MBA in 1987 and increased his annual income from $50,000 in 1987 to more than $400,000 in 1992. Throughout the course of their marriage, the parties maintained largely separate finances including, inter alia, separate bank accounts, division of housing and vacation costs, alternating responsibility for payments for entertainment, reimbursement for occasional purchases on the other’s charge card, filing individual tax returns or paying proportional shares of a joint return, and the like. The parties continued this arrangement until the commencement of the within divorce action. The marriage had no issue. Plaintiff commenced this action for divorce in September 1992. In February 1995, the Supreme Court issued an order granting the divorce, dividing marital property, and awarding plaintiff maintenance and attorney’s fees. The trial court found that the May 1981 agreement was void for failure to comply with Domestic Relations Law § 236 (B) (3), which provides that a marriage agreement shall be enforceable in a matrimonial action if the agreement "is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. Defendant appealed on this and other grounds; plaintiff cross-appealed for an increase in maintenance in the event that the distributive award were to be reduced. We reverse and remand for enforcement of the marital agreement. While we recognize that an agreement "shall be valid and enforceable” pursuant to section 236 (B) (3) if it has been acknowledged or proven in a formal fashion, we do not read the statute, enacted to prevent fraud and overreaching in nuptial contracts, to pose an irrebuttable per se negation of agreements and arrangements which lack such acknowledgement. (See, Sanders v Copley, 151 AD2d 350 [1989] [in-court stipulation]; Aziz v Aziz, 127 Misc 2d 1013 [Sup Ct, Queens County 1985] [religious agreement].) In this case, there is no allegation that the contract was the product of fraud, duress, or misunderstanding or was otherwise undertaken to plaintiff’s disadvantage. On the contrary, the agreement was entered into at plaintiffs insistence and to protect plaintiffs property interests; it was drafted by an attorney chosen by plaintiff and 202 was executed at counsel’s office; its terms were acknowledged and ratified in the daily activities and property relations of the parties throughout their eleven-year marriage. Under these unique and limited circumstances, we hold that the agreement is valid and enforceable against plaintiff. Because the agreement expressly and unambiguously bars all claims by either party upon the property of the other by reason of their marriage, the trial court’s award of property, maintenance, and attorney’s fees in this matter was unwarranted. Concur—Murphy, P. J., Kupferman and Nardelli, JJ.