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Manifestly Unfair Marital Agreements
In December 2006, Justice Laura Visitacion-Lewis of Supreme Court, New York County, held that a modification to a separation agreement was void ab initio and unenforceable. D.M. v. K.M., 14 Misc.3d 1206(A), Slip Copy, (Sup. Ct., N.Y. Cty. 12/12/06). That case involved a woman who agreed to give up her rights under the original agreement according to which she would have received a large monthly maintenance payment, child support and custody of the couples' children. Although the Special Referee who first analyzed the case considered the modified agreement unenforceable because the ex-wife, an alcoholic, might have been impaired at the signing, the appellate court rescinded the agreement on another basis: The amended agreement was a product of the ex-husband's overreaching.
We are reminded by the holding in D.M. v. K.M. that there is a strict surveillance of all transactions between married persons, especially separation agreements. The appearance of 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. But when is a separation agreement so unfair that New York's courts will set it aside?
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