Chapter 10 MODIFICATION OF CONTRACTUAL SPOUSAL MAINTENANCE

JurisdictionNew York

Chapter Ten

Modification of Contractual Spousal Maintenance

I. Modification of Contractual Spousal Maintenance: Showing of Extreme Hardship If Judgment Incorporates Surviving Agreement

When a divorce judgment incorporates a surviving agreement that includes spousal maintenance provisions, the court may modify the award only upon a prima facie2508 showing of "extreme hardship"2509 which simultaneously alters the underlying agreement so that its support provisions do not continue to survive as an independent contract.2510 This remains the law of the state, notwithstanding the Court of Appeals's reservations in Kleila v. Kleila2511 over such a constitutional infraction2512—to wit, that constitutional rights cannot be intruded upon by the state under an expansive guise permitting modification of separation agreements.2513 Extreme hardship, although a statutory standard, is not defined in the Domestic Relations Law. The common law states that it is well established that where impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused.2514

II. Contractual Maintenance When Spouse Is In Danger of Becoming a Public Charge

In McMains v. McMains,2515 a pre-equitable distribution case, the Court of Appeals emphasized that the mutual duty of support between spouses continues after their divorce. Thus, when the wife was unable to support herself on the amount provided in the separation agreement incorporated into the decree, was unable to work because of her health, and was in actual danger of becoming a public charge, the amount of spousal maintenance set forth in the decree was increased to provide additional support even though the separation agreement, valid and adequate when made, was otherwise binding on both parties. The authority for an upward modification in such instances is predicated on the public policy which seeks to protect the public fisc. Thus, the increase was permissible as it was not in excess of the amount necessary to permit the former wife her basic requirements. Pursuant to N.Y. Family Court Act § 463 (FCA),2516 a separation agreement does not preclude the filing of a petition and the making of an order under FCA § 445 for support of a spouse who is likely to become in need of public assistance or care. McMains remains a valid authority.

The jurisdiction of the family court in support matters in face of a surviving agreement is set forth in FCA §§ 461,2517 463, and 466.2518

Family court lacks subject matter jurisdiction to enforce spousal support applications where the obligation to provide support has expired under a foreign decree. In Rubbo v. Rubbo,2519 the First Department unanimously reversed family court's denial of the former husband's motion to dismiss a support proceeding for lack of jurisdiction where the wife waived her right to support in a separation agreement which was incorporated but not merged in their Mexican divorce decree.

Voluntary retirement does not generally trigger a hearing, especially when there is a failure to make a prima facie showing of extreme hardship.2520

III. Public Charge, Fair and Reasonable At Time of Making of the Agreement and Not Unconscionable At Time of Entry of Final Judgment

While DRL § 236B(3)(3) establishes a two-tier test regarding spousal maintenance which survives an agreement: (1) the agreement must comply with General Obligations Law § 5-311 (GOL), which forbids an agreement which would render a spouse a public charge; and (2) which is stated conjunctively, that the support terms must have been "fair and reasonable at the time of the making of the agreement" and "are not unconscionable at the time of entry of final judgment."

The parties in Barocas v. Barocas2521 were married for 15 years. There were two minor children at the time of the divorce. The wife was born in Guyana, and, in 1981, immigrated to the United States at the age of 21. One year later she obtained a GED with no further education. She worked menial jobs, including as a part-time receptionist for the husband's family business, where she met the husband. Other than sporadic attempts at small business ventures, she did not work outside the home for the duration of the marriage.

A prenuptial agreement was presented to the wife approximately two weeks prior to the wedding. As part of full disclosure, schedules attached to the agreement indicated that the husband had no liabilities and total assets in the amount of approximately $580,000. The wife's total net worth was less than $20,000. Under the terms of the agreement, the wife waived any claims to any property that the husband owned or acquired prior to and subsequent to the marriage. She further waived any right of election. The agreement contained...

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