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SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the separation agreements were unconscionable. Defendant wife was represented by counsel in the divorce, plaintiff husband was not, there was a vast difference in assets, wife’s pensions were not valued, and financial disclosure was not complete. The matter was sent back for new rulings on equitable distribution and maintenance:

 

A separation agreement should be set aside as unconscionable where it is “such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other . . . , the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another … .

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Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider … . Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties … . In particular, defendant, who had a master’s degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties “wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine.” As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff’s assets totaled approximately $77,000 whereas defendant’s assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside … . Tuzzolino v Tuzzolino, 2017 NY Slip Op 08991, Fourth Dept 12-22-17

 

FAMILY LAW (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/SEPARATION AGREEMENTS (FAMILY LAW, SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/UNCONSCIONABLE (FAMILY LAW,  MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/DIVORCE (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))

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