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Chapter 10 MODIFICATION OF CONTRACTUAL SPOUSAL MAINTENANCE
Jurisdiction | New 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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Request your trial- New York State Bar Association
- Contract Doctrine and Marital Agreements in New York
- Chapter 10 MODIFICATION OF CONTRACTUAL SPOUSAL MAINTENANCE
- Chapter 11 CUSTODY, PARENTING TIME, RELIGIOUS UPBRINGING, ARTIFICIAL INSEMINATION, NAME CHANGES
- Chapter 12 PENSIONS AND QDROS
- Chapter 13 DEATH, SETTLEMENT AGREEMENTS, AND PROPERTY DISTRIBUTION
- Chapter 14 AGREEMENTS TO PAY SPOUSAL MAINTENANCE AFTER REMARRIAGE AND DEATH
- Chapter 15 THIRD PARTIES AND THIRD-PARTY BENEFICIARIES
- Chapter 16 ACCELERATION CLAUSES, CONFIDENTIALITY AGREEMENTS, CONSEQUENTIAL DAMAGES,LOST PROFITS, AND CONTRACTUAL INTEREST RATES
- Chapter 17 LIQUIDATED DAMAGE CLAUSES
- Chapter 18 MODIFICATION OF AGREEMENTS
- Chapter 19 OPTIONS
- Chapter 20 SPECIFIC PERFORMANCE
- Chapter 21 RECONCILIATION AND REPUDIATION OF AGREEMENTS
- Chapter 22 ACCORD AND SATISFACTION, SUBSTITUTION OF AGREEMENTS
- Chapter 23 RELEASES, INDEMNIFICATION, AND EXCULPATORY CLAUSES
- Chapter 24 UNCONSCIONABILITY: PROCEDURAL UNCONSCIONABILITY AND SUBSTANTIVE UNCONSCIONABILITY
- Chapter 25 FIDUCIARY RELATIONSHIPS AMONG SPOUSES AND AFFIANCED COUPLES
- Chapter 26 CONVERSION DIVORCES
- Chapter 27 AMBIGUOUS AGREEMENTS
- Chapter 28 RESCISSION
- Chapter 29 REFORMATION
- Chapter 30 STATUTES OF LIMITATIONS
- Chapter 31 EQUITABLE ESTOPPEL, LACHES
- Chapter 32 GENERAL AND SPECIFIC MERGERS CLAUSES
- Chapter 33 PLENARY ACTIONS
- Chapter 34 FAMILY COURT
- Chapter 35 WAIVERS
- Chapter 36 INDEPENDENT COUNSEL
- Chapter 37 RATIFICATION
- Chapter 38 COMITY AND BILATERAL FOREIGN DIVORCE JUDGMENTS
- Chapter 39 COUNSEL FEES
- Chapter 40 ALLEGATIONS IN VACATUR PROCEEDINGS
- Chapter 41 PRENUPTIAL AGREEMENTS
- Chapter 42 EXPRESS ORAL AGREEMENTS BETWEEN COHABITING PARTNERS
- Chapter 43 UNJUST ENRICHMENT, QUANTUM MERUIT, QUASI CONTRACT, IMPLIED CONTRACT
- Chapter 44 CONTRACTUAL OBLIGATIONS AND TORT, INTENTIONAL AFFLICTION OF EMOTIONAL DISTRESS
- Chapter 45 HOW COURTS HAVE CONSTRUED CONTRACTUAL LANGUAGE
- Chapter 1 AGREEMENTS IN GENERAL: PRINCIPLES OF CONTRACT DOCTRINE
- Chapter 2 CONSIDERATION
- Chapter 3 FAILURE TO READ AN AGREEMENT
- Chapter 4 ACKNOWLEDGMENTS
- Chapter 5 MERGER AND SURVIVAL OF AN AGREEMENT
- Chapter 6 ARBITRATION
- Chapter 7 SEVERABILITY CLAUSES
- Chapter 8 DRL § 240(1-B)(H)OPT-OUT RECITALS FROM STATUTORY CHILD SUPPORT
- Chapter 9 MODIFICATION OF CONTRACTUAL CHILD SUPPORT
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