You are here: / / THE ESTATE OF A PARTY TO A SEPARATION AGREEMENT MAY SEEK A DOWNWARD MODIFICATION...
, , ,

THE ESTATE OF A PARTY TO A SEPARATION AGREEMENT MAY SEEK A DOWNWARD MODIFICATION OF THE AGREED MAINTENANCE PAYMENTS; THE DISSENT ARGUED ONLY THE PARTY, NOT THE ESTATE OF THE PARTY, CAN SEEK A DOWNWARD MODIFICATION AND THE MATTER SHOULD BE HANDLED IN PROBATE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that the estate of a party to a separation agreement that was merged but not incorporated into a judgment of divorce could seek a downward modification of the maintenance payments. The dissent argued only the party to the agreement, not the estate of the party, could seek a downward modification based on extreme hardship:

FROM THE DISSENT:

… [T]his Court recently held that plaintiff and defendant’s decedent entered into a Separation and Property Settlement Agreement (settlement agreement), which was incorporated but not merged into a judgment of divorce, whereby decedent agreed to pay lifetime maintenance to plaintiff that continued even in the event of decedent’s death … . * * *

Pursuant to the Domestic Relations Law, “[w]here . . . [a separation agreement] remains in force, no modification of an order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party” (§ 236 [B] [9] [b] [1] …). A modification of maintenance based on extreme hardship is thus, personal to the parties who contracted as to the amount of maintenance in the separation agreement and, as noted, a modification of that amount has only been awarded in situations involving personal hardships. In my view, an “estate” can never establish a personal hardship and thus, is never entitled to a downward modification of maintenance. While defendant in this case submitted evidence that the continued payment of the maintenance obligation would pose a hardship on the estate, such a hardship is not upon any party to the settlement agreement. Indeed, it is only a hardship upon the beneficiaries of decedent’s estate who wish to maximize their inheritance. In my view, any difficulty in the estate’s ability to pay the amount of lifetime maintenance agreed to by decedent is an issue that should be raised by the estate in the probate court when determining the reserve funds to be set aside to satisfy the maintenance obligation. Gardner v Zammit, 2021 NY Slip Op 00707, Fourth Dept 2-5-21

 

You might also like
EVIDENCE SEIZED FROM DEFENDANT’S PERSON BEFORE THERE WAS PROBABLE CAUSE TO ARREST SHOULD HAVE BEEN SUPPRESSED; HOWEVER EVIDENCE COLLECTED AFTER THERE WAS PROBABLE CAUSE WAS NOT THE FRUIT OF THE POISONOUS TREE.
Mother Not Adequately Apprised of Her Right to Counsel—New Hearing Ordered
SUPREME COURT HAD FOUND COVID-19 RESTRICTIONS ON LIVE MUSIC PERFORMANCE UNCONSTITUTIONAL; THE APPEAL WAS DEEMED MOOT AND THE MERITS WERE NOT REACHED (FOURTH DEPT).
ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).
THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​
COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER’S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT).
PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE.
QUESTION OF FACT WHETHER SKIER ASSUMED THE RISK OF STRIKING A SNOWMAKING MACHINE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

COMPREHENSIVE DISCUSSION OF THE PROCEDURES AND CRITERIA FOR THE ISSUANCE AND... IN THE FOURTH DEPARTMENT, UNLIKE IN THE SECOND DEPARTMENT, A MUNICIPALITY MOVING...