Opinion
11-19-2018
A.A., Plaintiff, v. B.B., Defendant.
For Plaintiff Wife: Susan L. Bender, Esq., Bender & Rosenthal LLP, New York For Defendant Husband: Caroline Krauss-Browne, Esq., Michelle Ann Gitlitz, Esq., Blank Rome LLP, New York
For Plaintiff Wife: Susan L. Bender, Esq., Bender & Rosenthal LLP, New York
For Defendant Husband: Caroline Krauss-Browne, Esq., Michelle Ann Gitlitz, Esq., Blank Rome LLP, New York
Douglas E. Hoffman, J.
Plaintiff Wife (the "Wife") moves for an Order (1) granting her summary judgment as a matter of law under CPLR § 3212(a), and dismissing Defendant Husband's affirmative defenses, pursuant to CPLR § 3211(b). In support of her motion, the Wife relies upon the parties' * * * 2014 agreement (the "2014 Prenuptial Agreement"), their * * *, 2014 amendment of agreement (the "2014 Amendment"), and * * *, 2016 second amendment of agreement ("2016 Second Amendment") to find that Defendant Husband (the "Husband") has not stated a defense of overreaching, unconscionability, fraud, undue influence, repudiation, unclean hands, lack of consideration, or lack of meeting of the minds; (2) granting her summary judgment as a matter of law under CPLR § 3212(a), and dismissing Defendant Husband's affirmative defenses, pursuant to CPLR § 3211(a)(1), for his failure to state a cause of action for constructive trust or fraud; and (3) granting her summary judgment as a matter of law under CPLR § 3212(a) and declaring the parties' 2014 Prenuptial Agreement, 2014 Amendment, and 2016 Second Amendment valid and enforceable.
The Husband opposes summary judgment, stating that there are issues of triable fact as to whether the agreements should be invalidated due to alleged undue influence, overreaching, duress, unconscionability, lack of consideration, repudiation, fraud, and unclean hands, and whether a constructive trust should be imposed on the New Jersey house in question.
Factual Background
The following is a recitation of material undisputed facts from the parties' submissions, unless otherwise stated.
The parties met in * * *. They became engaged approximately three months later and married in * * * 2015. Prior to that marriage, they signed a prenuptial agreement and one amendment to that prenuptial agreement. * * *. Approximately two years after they were married, the parties also signed a postnuptial agreement, which they called a second amendment to their prenuptial. The parties eventually separated and Plaintiff filed this matrimonial action. * * *. Plaintiff Wife now moves to enforce the prenuptial agreement, as amended by the first and second amendments, which Defendant Husband opposes on numerous grounds, addressed below.
Plaintiff is an attorney. * * * [Each of the parties had been previously married and divorced, each one more than once, each had children from their prior marriages, and each one was in their 60s when they signed the 2014 Prenuptial Agreement]. Defendant is an * * * and businessman, who previously ran his own business that he sold to * * *before retiring. * * *. Both parties were advised by counsel, and there are no allegations that either party needed an interpreter, either in court or to review legal documents.
2014 Prenuptial Agreement
The parties became engaged in * * *. In * * *2014 (approximately eleven months after their engagement and five months before their wedding), they signed the 2014 Prenuptial Agreement. Defendant was represented by * * * G., Esq. (who had been Defendant's divorce attorney "since 2008," and who had represented him in a prior cohabitation agreement and two divorces). Plaintiff, who is herself an attorney, was represented by * * * H., Esq.
Prior to the signing, the parties and their attorneys exchanged several drafts of the proposed agreement. Plaintiff and Defendant also met with Defendant's investment advisor, * * *, for at least an hour (although there is a dispute as to exactly how much of Plaintiff's assets or income were revealed to Defendant at this meeting). At the time, Defendant was also counseled by his real estate attorney and accountant, in addition to his matrimonial attorney and investment advisor.
Defendant was the first to sign the 2014 Prenuptial Agreement, on * * *, 2014 in his attorney's office, without Plaintiff present. Plaintiff signed two days later, on * * *, 2014. The agreement was signed and duly acknowledged as required under D.R.L. § 236(B)(3), and there are no allegations that it does not comply with those requirements.
In relevant part, the 2014 Prenuptial Agreement provides:
1. Each of the parties was to keep certain listed and enumerated property as separate, including any prior or future gifts from one to another.
2. Each of the parties was to maintain separate health insurance, and each was responsible for their own unreimbursed medical expenses throughout the marriage.
3. Plaintiff agreed to cooperate to list Defendant as a co-tenant on her rent-stabilized New York City apartment lease, with the intention of Defendant having the right of succession to the rent-stabilized lease if Plaintiff predeceased him while they were married; Defendant agreed to vacate the New York apartment and cooperate in having his name removed from the lease in case of a divorce. In other words, Defendant could only "take over" the apartment if he outlived Plaintiff while they were still married, or, under the law, if Plaintiff otherwise vacated the premises while they were married and Defendant satisfied the residency requirements. See NY RENT STAB § 2523.5(b).
4. Plaintiff agreed to remain liable for all carrying charges for this apartment during the marriage.
5. Defendant agreed to transfer title to Plaintiff to his mortgage-free New Jersey house and reserve a life estate for himself, such that he could live in the house (or a defined "replacement property") but could not bequeath the house to others, regardless of divorce. Plaintiff stated that one of the reasons for granting Defendant a life estate was part of a health-care-spend-down plan, which would allow Defendant (who did not have long-term care insurance) to remain in the New Jersey house during his lifetime but still become eligible for healthcare in case of catastrophic medical expenses without having to "spend down" his house. (P. Reply at § 19-23).
6. Defendant agreed to pay for the parties' living expenses during the marriage, other than expenses associated with the New York apartment or Plaintiff's law business.
7. Defendant would, after marriage, name Plaintiff as successor to his * * * pension, if he were to predecease her during marriage. All other pensions and similar accounts would remain separate.
8. Parties agreed to mutual waivers of maintenance in case of a divorce.
9. Parties agreed to mutual waivers of equitable distribution in case of a divorce.
10. Parties agreed to mutual waivers of a spouse's right of election against the estate of the other.
11. Each party was explicitly allowed to bequeath their property as they wish, other than as enumerated in the agreement, although each promised to name the other as executor.
12. Parties also made provisions for reciprocal HIPAA authorizations, health care proxies, executors, and specified powers of attorney.
This Prenuptial Agreement was signed after negotiation and discussion. Defendant's attorney had comments on virtually every section. For example, on * * *, Defendant's attorney emailed Plaintiff's attorney and copied Defendant (P. Aff, Ex. D). Defendant's attorney stated: "I do not understand and cannot approve of [Defendant] transferring ownership of his home" He also requested asset and debt information. He requested changes to the living expenses section. He questioned the need for mutual promises to name the other spouse as an executor. He made line-edit suggestions. He also reserved the right to make further comments "after further discussions with [Defendant]," who was copied on that email. (Id. ).
Plaintiff also attaches a letter from Defendant's attorney to Defendant, which predates the signing of the Prenuptial Agreement, where his attorney apparently states that if Defendant were to sign the agreement, it would be over his attorney's objection. (P. Aff, Ex. E). There appears to be a factual dispute about how this letter came into the Wife's possession, and therefore, whether the attorney-client privilege has been sufficiently waived to allow this court to consider the letter: The Husband states that it is not proper for the Wife to have this letter, whereas the Wife states that she found this letter long after it was written, during the marriage, in the parties' combined folder of important documents to which both spouses had unfettered access. [Compare D. Mem. Law at 19 with P. Reply at 7 n.5]. The court need not review this letter or rely on it at this point in the proceedings, especially given that Ex. F cited above, an email from Defendant's attorney to both Plaintiff's then-attorney and Defendant, an email which both parties had access to, clearly spells out his attorney's numerous objections to the proposed Prenuptial Agreement, including the provision about the New Jersey house. Plaintiff also attaches several negotiation emails, which refer to discussions and telephone calls, and which memorialize a change to the final version requiring that any substitute property if the Wife sells the New Jersey house to be located within 50 miles of lower Manhattan. (P Aff., Ex. G). There is sufficient undisputed evidence (even without the Ex. E letter) that Defendant's attorney made both Defendant and Plaintiff's attorney aware of his objections prior to the * * *, 2014 signing.
The Wife does not dispute that she and her attorney did not agree to most of the changes requested by Defendant's attorney. Nevertheless, Defendant signed the Prenuptial Agreement in his attorney's office, after those negotiations, without Plaintiff being present, two days before she signed it, and some five months before the wedding. (P. Aff, Ex. H).
2014 - First Amendment
On * * *, 2014, approximately four months after the signing of the 2014 Prenuptial Agreement and still prior to their marriage, the parties executed an amendment to their prenuptial agreement. According to both Plaintiff and Defendant's submissions, it turned out that the succession rights to the Husband's * * *pension (which the Husband was to provide to the Wife under the Prenuptial Agreement) were already granted to one of his ex-wives, and therefore, no longer belonged to the Husband such that he could share them with the Wife. The amendment thus replaced the * * * pension grant with a grant of $250,000 from the Husband's * * *account, also upon his death, to the Wife, if she survived him during the marriage. (P. Aff, Ex. L). Prior to signing this amendment, Plaintiff reached out to his attorney Mr. G (in an email, which he also forwarded to Plaintiff, several days before signing the amendment), explaining the exchange of one grant for another, and asking Mr. G. to contact Plaintiff's attorney "to settle the details." (P. Aff., Ex. K).
The 2014 First Amendment also stated the following about the 2014 Prenuptial Agreement: "FOURTH: Except as amended hereby, all terms and conditions contained in the Agreement dated August 14, 2014 shall remain in full force and effect." (P. Aff., Ex. K at 2). This amendment was signed by both parties and duly acknowledged as required under D.R.L. § 236(B)(3), and there are no allegations that it does not comply with those requirements.
Marriage
The parties were married on * * *, 2015. The parties also instituted most of the provisions of their prenuptial agreement:
On or about * * *, 2015, per the 2014 Prenuptial Agreement, Defendant transferred the New Jersey house to Plaintiff, reserving a life estate to himself. (P. Aff, Ex. N). Defendant's signature on the deed was witnessed by * * *, Esq., a New Jersey attorney, as both a witness and settlement officer.
Per the 2014 Prenuptial Agreement, Plaintiff added Defendant to the New York lease, via several documents, signed by both parties. On or about * * *, 2014, Plaintiff and Defendant executed a new lease for the New York apartment, for the term starting * * *, and mailed it to their landlord, along with an increased deposit. On * * *, 2014, they also both signed a document entitled "Notice to Owner of Family Members Residing With the Named Tenant In The Apartment Who May Be Entitled To Succession Rights/Protection From Eviction," which document listed and enumerated those rights and regulations. (P. Aff, Ex. I). Both the lease and the notice (both of which were signed by Defendant and Plaintiff) explained succession rights of family members. The notice is a detailed recitation of his succession and non-eviction rights. In addition, the lease, which Defendant signed on a different day from the notice, also explained his succession rights, in the lease's section entitled "RENEWAL LEASE SUCCESSION RIGHTS":
In the event that the tenant has permanently vacated the apartment at the time of the renewal lease offer, family members who have lived with the tenant in the apartment as a primary residence for at least two years immediately prior to such permanent vacating (one year for family members who are senior citizens and disabled persons), or from the inception of the tenancy or commencement of the relationship, if for less than such periods, are entitled to a renewal lease.
"Family member" includes the spouse ....
P. Aff, Ex. I at 27.
The parties also apparently cooperated with putting in place other provisions contemplated by the 2014 Prenuptial agreement and the First Amendment: The Schwab beneficiary designation (P. Aff, Ex. O) and sharing the cemetery plots unless the marriage dissolves (P. Aff, Ex. J). On * * *, Defendant signed a Last Will and Testament, citing the 2014 Prenuptial Agreement and the First Amendment, and bequeathing $250,000 from the * * * account to Plaintiff if he were to die during the marriage. (P. Aff, Ex. P at 1-2). He also named Plaintiff as the executor of his will and as trustee of all the trusts created under it, with his accountant * * *as the successor executor. (Id. at 20). Defendant's attorney Mr. G. was one of the signing witnesses.
Plaintiff and Defendant, in their submissions, do not agree to what extent, if any, Plaintiff signed HIPAA, specified power of attorney, and executor provisions naming Defendant. For the purposes of Plaintiff's summary judgment motion, the court will assume that she did not sign them (which is the position argued by Defendant in his opposition to the summary judgment motion).
2016 — Second Amendment
On * * *, 2016, approximately eighteen months after the wedding, the parties executed the 2016 Second Amendment. Prior to signing, the parties and their attorneys exchanged several drafts with comments on this proposed second amendment, with redlined changes. (P. Aff, Ex. Q).
In * * * 2016, Defendant emailed with his attorney Mr. G. about whether to continue with the marriage and the Prenuptial Agreement, stating "* * *." Mr. G. responded to Defendant, "Ok I respect that. Let me see what you agreed to. You know that the passage of time weakens your case to set aside the agreement." A month later, in * * * 2016, Defendant forwarded this email chain to Plaintiff. (P. Aff. Ex. JJ).
In * * *, Defendant signed the 2016 Second Amendment in front of his attorney Mr. G., who notarized and acknowledged Defendant's signature. (P. Aff, Ex. R). Plaintiff's signature was notarized and acknowledged by a New York notary. (Id. ). The amendment was signed and duly acknowledged as required under D.R.L. § 236(B)(3), and there are no allegations that it does not comply with those requirements.
This amendment reaffirmed the 2014 Prenuptial Agreement and the 2014 First Amendment:
WHEREAS, The parties want to remain bound to the provisions of the Original Agreement and the amendment dated * * *, 2014, notwithstanding the amendments of certain provisions of the agreement contained herein ... Except as amended by this agreement, all terms and conditions contained in the Original Agreement dated * * *, 2014 and the Amendment to agreement dated * * *, 2014, shall remain in full force and effect.
(P. Aff, Ex. R).
This second amendment stated that the parties will file their taxes separately, changed the definition of the "Parties' Residence" to make clear that they intend to reside at both the New York apartment and the New Jersey house, added a provision that if the Husband's cash and investments fall below $* * *, then the parties would sell the New Jersey house (and the Husband will cooperate and release his life estate to allow for the sale), divide the proceeds 50-50 as separate property, and live in the New York apartment with each spouse contributing half toward the carrying charges and food expenses (but not toward the costs connected with the Wife's law business, which she would run in part out of the apartment, and which costs were to remain her own expense). The amendment also removed the parties' obligations to name each other as executors or to sign HIPAAs or powers of attorney naming the other, making this instead a voluntary, not a mandatory, provision. The Husband also agreed to leave 20% of his estate to the Wife if he were to predecease her during the marriage.
On * * *, the Husband executed a new Last Will in compliance with this Second Amendment. Mr. G. signed as one of his witnesses. (P's Aff, Ex. S).
DISCUSSION
Summary Judgment Standard
The motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." CPLR § 3212(b). The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Zuckerman v. City of New York , 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). See also Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985) ("The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers"); see also Ayotte v. Gervasio , 81 NY2d 1062, 1063, 619 N.E.2d 400, 601 N.Y.S.2d 463 (1993) ; Finklestein v. Cornell Univ. Med. Coll. , 269 AD2d 114, 117, 702 N.Y.S.2d 285 (1st Dept. 2000).
Validity of the Agreements
The 2014 Prenuptial Agreement was signed and duly acknowledged as required under D.R.L. § 236(B)(3). Both parties were represented by counsel and signed the agreement after negotiation and discussion. The parties also reaffirmed this agreement on two occasions, discussed supra , as part of each of their two amendments to the agreement, in 2014 and in 2016, each of which amendments was also signed and duly acknowledged as required under D.R.L. § 236(B)(3).
As the First Department stated in the 2014 Anonymous v. Anonymous case, there is a heavy burden on the spouse challenging a prenuptial, and it is the rare exception, rather than the rule, that a prenuptial can be overturned:
New York has a long-standing "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" ( Matter of Greiff , 92 NY2d 341, 344, 680 N.Y.S.2d 894, 703 N.E.2d 752 (1998) ). It is axiomatic that a duly executed prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside (see Bloomfield v. Bloomfield , 97 NY2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 (2001) ). However, in many instances, "agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond that afforded contracts in general" ( Kessler v. Kessler , 33 AD3d 42, 46, 818 N.Y.S.2d 571 (2d Dept. 2006) ; lv. dismissed 8 NY3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 221 (2007) ). Although "there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties" ( Brassey v. Brassey , 154 AD2d 293, 295, 546 N.Y.S.2d 370 (1st Dept.1989) ), an agreement between prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct (see Christian v. Christian , 42 NY2d 63, 72, 396 N.Y.S.2d 817, 365 N.E.2d 849 (1977) ). Nevertheless, such results remain the exception rather than the rule.
The burden of producing evidence of such fraud, duress or overreaching is on the party asserting the invalidity of the agreement ( Matter of Greiff , 92 NY2d at 344 ; Cohen v. Cohen , 93 AD3d 506, 940 N.Y.S.2d 250 (1st Dept.2012) ).
Anonymous v. Anonymous , 123 AD3d 581, 582, 999 N.Y.S.2d 386 (1st Dept. 2014).
Although it is possible to shift this burden to demonstrate fraud or overreaching, such burden shifting is possible only after a showing that it is "certain" that the "stronger party" had a "probable" unfair advantage, and then, the burden may be shifted for that "stronger" party to affirmatively demonstrate that there was no fraud or undue influence:
Whenever the relations between the contracting parties appear to be of such a character as to render it certain that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.
Greiff , 92 NY2d at 345.
Although the Greiff court did not set out specific factors to show this "certainty," courts have analyzed the following non-exclusive factors, as summarized in Estate of Buzen :
detrimental reliance on the part of the poorer spouse (citing Greiff )
relative financial positions of the parties (citing Greiff )
the formality of the execution ceremony itself (citing Greiff ; citing Christian )
full disclosure of assets as a prerequisite to a knowing waiver (citing Matter of Van Zandt , 117 AD2d 810, 499 N.Y.S.2d 432 (2d Dept. 1986) )
the physical or mental condition of the objecting spouse at the time of execution (citing Gordon v. Bialystaker Ctr. & Bikur Cholim , 45 NY2d 692, 695—96, 385 N.E.2d 285 (1978) )
superior knowledge/ability and overmastering influence on the part of the proponent of the agreement (citing Gordon v. Bialystaker )
the presence of separate, independent counsel for each party (citing Greiff )
the circumstances in which the agreement was proposed and whether it is fair and reasonable on its face (citing In re Phillips' Estate , 293 NY 483, 58 N.E.2d 504 (1944) )
provision for the poorer spouse in the will [or otherwise] (citing Sunshine's Estate , 40 NY2d 875, 876, 357 N.E.2d 999 (1976) )
Estate of Buzen , 1999 NYLJ LEXIS 913, NYLJ, Apr. 2, 1999, at 35, col 1 (Sur. Ct. Nassau Co. 1999) (quoted by Estate of Rappaport , 184 Misc 2d 660, 662, 709 N.Y.S.2d 921, 922 (Sur. Ct. Nassau Co. 2000), In re Kazuba , 9 Misc 3d 1116(A) (Surr. Ct. Nassau Co. 2005), In re Estate of Menahem , 16 Misc 3d 1125(A), 847 N.Y.S.2d 903 (Sur. Ct. Kings Co. 2007), aff'd sub nom. In re Menahem , 63 AD3d 839, 880 N.Y.S.2d 500 (2d Dept. 2009) ).
In the instant case, these factors do not lead to the conclusion that there was such a "certain" "inequality" between the then-future Husband and Wife sufficient to trigger the Greiff burden-shifting:
(i) Defendant had multiple advisors during the prenuptial-negotiation process: his long-term matrimonial attorney, real estate attorney, investment advisor, and accountant;
(ii) Defendant had extensive prior experience negotiating contracts in his businesses and was personally familiar with both business and matrimonial negotiations;
(iii) Neither party appears to be clearly or meaningfully the "poorer spouse," as in some prior cases where one spouse had the vast majority of the income and assets;
(iv) There were substantial financial disclosures, and both parties knew exactly what was and what was not attached to the prenuptial agreement (see In re Fizzinoglia , 26 NY3d 1031, 1032, 43 N.E.3d 361, 362 (2015) ); although there is dispute about the amount of the Wife's annual income as disclosed at the time, Defendant does not allege any connection between her income and the New Jersey house provision that he seeks to invalidate (i.e. , he does not allege that had he known at the time that her income was higher, he would not have granted her the New Jersey home and have saved for himself only the life estate);
(v) Defendant's attorney pointed out, in an email to Plaintiff's attorney and Defendant, several potential problems with the prenuptial agreement, such that Defendant cannot be said to be unaware of them;
(vi) There was no sufficiently explained reason for Defendant to rely on Plaintiff's negotiation stance, as opposed to that of his advisors. Although Plaintiff is an attorney and Defendant is not an attorney, that in and of itself cannot be a reason to shift the burden or invalidate a prenuptial agreement, especially where, as here, the non-attorney spouse was represented by an experienced attorney; to hold otherwise would require the Greiff burden shifting in any prenuptial agreement between an attorney and a non-attorney spouse;
(vii) Any alleged threats not to go forward with the wedding are not considered legally improper "threats" sufficient to invalidate a prenuptial agreement, but are instead an exercise of a legal right not to marry ("a threat to a pregnant woman to cancel the wedding if she refused to sign the agreement provided no basis to set the agreement aside... Likewise... we declined to invalidate a prenuptial agreement where the wife believed that there would be no wedding if she did not sign the agreement; [courts] cannot set aside the agreement here merely because the husband's repeated refusal to marry his then-pregnant fiancee without a prenuptial agreement might be viewed by some as callous." Gottlieb v. Gottlieb , 138 AD3d 30, 40—41, 25 N.Y.S.3d 90 (1st Dept.), leave to appeal dismissed , 27 NY3d 1125, 57 N.E.3d 73 (2016) ).
(viii) Here, there was a formal execution ceremony, and Plaintiff was not present to "influence" Defendant in his attorney's office, instead, allowing Defendant and his attorney to meet and to decide together whether to sign the prenuptial agreement, which Defendant signed;
(ix) There were no allegations of relevant physical or mental disabilities, or of any language barriers.
Here, Defendant's attorney specifically and vigorously argued against the provisions transferring the New Jersey House (but for his life estate) to Plaintiff. Nevertheless, aware of his attorney's objections, Defendant signed the agreement. Nor does Defendant say that he did not understand this provision. Defendant was far from inexperienced in matrimonial actions. At the time of signing the 2014 Prenuptial Agreement, Defendant had been through * * * prior divorces, including his most recent divorce that was finalized just before his * * * engagement to Plaintiff. He was represented by Mr. G. in * * * prior divorces and one co-habitation agreement. He discussed with Plaintiff how much he "lost" in his prior divorce. He had his attorney review numerous drafts of the Prenuptial Agreement. Defendant was perhaps the one who suggested a prenuptial agreement. Defendant had amassed meaningful assets during his lifetime: He owned the New Jersey house free and clear of any debt, had at least * * * million dollars in investments, and pensions. He had a personal financial advisor, personal accountant, and real estate attorney, in addition to a matrimonial attorney. He had meaningful separate assets coming into the marriage, adult children, and several grandchildren from prior relationships who remained meaningful beneficiaries in his wills and trusts. If anything, he was the ideal candidate for a prenuptial agreement: Educated, well-advised by accountants and attorneys, experienced in prior matrimonial actions, with assets to protect, and progeny from prior relationships to whom to leave those assets.
The application of the Greiff -progeny factors, supra , distinguishes the present case from Bartlett , where the Second Department found a rebuttable inference of overreaching where both parties were essentially represented by the same attorney, and the wife, not represented by "independent" counsel, waived her right to alimony in spite of her significantly smaller income, and where the wife testified that she did not understand that signing a separation agreement could lead to a divorce or that she would lose her ability to inherit from her husband's estate. Bartlett v. Bartlett , 84 AD2d 800, 444 N.Y.S.2d 157 (2d Dept. 1981). The present case is also distinguishable from Rabinovich, where the Second Department affirmed a finding of duress in that "the prenuptial agreement ... was drafted in English, a language which [the wife] did not, at that time, understand, and that she did not have the opportunity to have the agreement reviewed by an attorney or translated into her native language before she signed it." Rabinovich v. Shevchenko , 93 AD3d 774, 775, 941 N.Y.S.2d 173 (2d Dept. 2012).
Cases cited by Defendant are similarly inapposite. In Tuccillo , the stipulation of settlement and judgment of divorce were vacated under the "unique circumstances" that one attorney purported to represent both spouses, but continued to act on the husband's behalf when the wife asked him not to file the papers. Tuccillo v. Tuccillo , 8 AD3d 659, 660, 779 N.Y.S.2d 234 (2d Dept. 2004). Here, however, each spouse was represented by their own independent attorney.
In McKenna , summary judgment was precluded where there was no financial disclosure, "defendant's attorney at that time was selected by the plaintiff and paid by him, and, according to Defendant, met with her only a short time before the execution of the agreement and failed to advise her of the legal consequences of the terms of agreement." McKenna v. McKenna , 121 AD3d 864, 865, 994 N.Y.S.2d 381 (2d Dept. 2014). Here, however, there was some financial disclosure, each spouse was represented by their own independent attorney, and there is no claim that Defendant was not advised or did not understand the legal consequences of the terms. Additionally, "a spouse's failure to disclose his or her assets as part of the [prenuptial] agreement does not, in and of itself, serve as a basis to nullify it." R.S. v. L.F.S. , No. 64755/2017, 2018 WL 4355038, at *6 (Sup. Ct., West. Co. Sept. 12, 2018) (citing Eckstein v. Eckstein , 129 AD2d 552, 514 N.Y.S.2d 47 (2d Dept. 1987) ; Panossian v. Panossian , 172 AD2d 811, 569 N.Y.S.2d 182 (2d Dept. 1991) ).
In Tartaglia , also cited by Defendant, the court stated that an "agreement which results in an award of substantially all of the marital assets to one party while burdening the other party with substantial economic obligations is patently unconscionable" and set aside a separation agreement that would have granted the wife the bulk of the assets and the vast majority of the husband's income, leaving him with an amount that placed him at the "risk of becoming a public charge." Tartaglia v. Tartaglia , 260 AD2d 628, 629, 689 N.Y.S.2d 180 (2d Dept. 1999). Here, however, there is no such "substantially all" allegation, let alone an allegation that Defendant would be at risk of becoming a public charge. In Lombardi , the agreement was set aside not only because the agreement provided the wife with a very small share of the marital home, but also because the wife was possibly unrepresented at the time of signing, had no separate income or assets, and alleged that the husband pressured her into signing with threats of eviction and threats of violence. Lombardi v. Lombardi , 127 AD3d 1038, 1041, 7 N.Y.S.3d 447 (2d Dept. 2015). Here, however, there are no such allegations. In Gardella v. Remizov , summary judgment enforcing a separation agreement was overturned where the husband raised "sufficient [submissions] to create an inference that the separation agreement was unconscionable" where the husband relinquished all of the property rights acquired during a ten-year marriage and waived what could have been substantial maintenance, even though he had no separate assets and only a minimal income. Gardella v. Remizov , 144 AD3d 977, 980, 42 N.Y.S.3d 225 (2d Dept. 2016). Here, however, there is no allegation that Defendant will be left with only minimal assets, but rather, only that one of his assets (the New Jersey house) will be diminished, and there are no allegations that he does not have other substantial assets.
When viewed as a whole, it cannot be said that the prenuptial agreement and its two amendments were so one-sided as to be unconscionable or overreaching. "An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and 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. In addition, although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made." Gardella v. Remizov , 144 AD3d 977, 979, 42 N.Y.S.3d 225 (2d Dept. 2016) (citations omitted).
Defendant cannot meaningfully argue that the Prenuptial Agreement and its two reaffirming amendments should be vacated because one of the provisions may be financially detrimental to him now that the relationship has ended. An agreement will not be overturned "merely because, in retrospect, some of its provisions were improvident or one-sided and simply alleging an unequal division of assets is not sufficient to establish unconscionability." Cioffi-Petrakis v. Petrakis , 72 AD3d 868, 869, 898 N.Y.S.2d 861 (2d Dept. 2010). "[C]ourts will not set aside an agreement on the ground of unconscionability simply because it might have been improvident." Golfinopoulos v. Golfinopoulos , 144 AD2d 537, 538, 534 N.Y.S.2d 407 (2d Dept. 1988). Accord , Ku v. Huey Min Lee , 151 AD3d 1040, 54 N.Y.S.3d 595 (Mem) (2d Dept. 2017). Courts "will not set aside a [property division] agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided. The circumstances surrounding the execution of the agreement disclose no issue of fact as to whether there was overreaching. We therefore adhere to the general rule that ‘If the execution of the agreement ... be fair, no further inquiry will be made.’ " Barocas v. Barocas , 94 AD3d 551, 942 N.Y.S.2d 491 (1st Dept. 2012) (upholding property division in a prenuptial that would result in husband receiving $4.6 million and wife $30,000 of the assets after a fifteen-year marriage, even though the wife did not work or have any other assets, while supporting a hearing on the issue of whether the maintenance waiver was unconscionable in light of the fact that the wife might become a public charge without maintenance).
It is not appropriate for courts to second-guess or rewrite agreements that parties entered into, in the absence of fraud, overreaching, or related indicia of unfairness discussed above. Parties' ability to decide their own affairs in those circumstances has to be respected by the courts. "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions." Christian , supra, 42 NY2d at 71—72. "In the absence of such inequitable conduct ... courts should not redesign the bargain reached by the parties merely because in retrospect the provisions might be viewed as improvident or one-sided." Id. "Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made. Because the circumstances surrounding the execution of the agreement raise no issue of fact as to whether there was overreaching, we need not inquire into whether the terms of the agreement are manifestly unfair." Gottlieb v. Gottlieb , 138 AD3d 30, 41, 25 N.Y.S.3d 90 (1st Dept.), leave to appeal dismissed , 27 NY3d 1125, 57 N.E.3d 73 (2016).
Under the circumstances here—Defendant was represented by experienced matrimonial counsel of his choice, had prior personal matrimonial experience and personal reasons to enter into a prenuptial agreement, had ample opportunity to discuss, revise, and negotiate the prenuptial agreement, the agreement had provisions that benefit each of the parties to varying degrees, Defendant makes no allegations that due to any language barrier, infirmity, or another meaningful reason, he did not understand either the statutory rights that he was giving up or the material terms of the agreement he was signing, and Defendant reaffirmed the prenuptial agreement on two separate later occasions—Defendant cannot now ask a court to redesign what he feels may be a bad bargain, or advocate for a burden-shifting to Plaintiff.
Regardless of burden-shifting, Defendant raises four categories of allegations in support of his objection to summary judgment, each discussed below:
1. Plaintiff allegedly did not provide appropriate financial disclosure;
2. Agreement was allegedly too one-sided in favor of Plaintiff:
a. Plaintiff received the benefit of the New Jersey house.
b. There was no benefit to Defendant from the New York apartment succession-rights provision.
c. Plaintiff did not comply with signing HIPAA, executor, power of attorney documents.
3. Plaintiff repudiated the Prenuptial Agreement by not signing HIPAA, executor, and power of attorney documents.
4. Plaintiff allegedly caused Defendant to rely on her as "his" attorney.
Adequacy of Financial Disclosure
Defendant alleges that Plaintiff did not provide a detailed affidavit of her income and assets as part of the prenuptial agreement. (Def. Mem. Law at 17). Defendant does not dispute that he had a general awareness of both of their assets and income, that his assets at the time were greater than hers, that he was aware that she was still working as an attorney, and that both parties met with his financial advisor prior to the signing, or that Plaintiff sent her detailed financials to his financial advisor prior to that meeting — Defendant, however, claims that he did not receive a copy of that email sent to his investment advisor, and alleges that he understood that her income was less than what it apparently was. He alleges that the Wife told him at that time that her annual income was $* * *, not the $* * *-$* * * that she included in her 2014 email to his financial advisor, which email was attached to the Wife's moving papers. (D. Aff. ¶¶ 17-18). Even if true, Defendant does not, however, state that this income difference would have changed his understanding of the overall financial picture of both parties, that he would not have entered into the prenuptial agreement, or that he would not have signed the New Jersey house provision that he now seeks to invalidate. In the present case, as in the Court of Appeals' Fizzinoglia decision, Defendant has failed to show that he was unaware of the lack of attached financial summary to the prenuptial, that he was unaware of the overall financial positions of the parties, that he would not have signed the prenuptial had he known the allegedly missing information, or that there is "prima facie proof that a fact-based, particularized inequality existed between" the parties. In re Fizzinoglia , 26 NY3d 1031, 1032, 43 N.E.3d 361, 362 (2015) (citing Greiff , 92 NY2d at 346 ). Defendant here did not allege a meaningful inequality, let alone a causal connection between such an inequality and the provision he seeks to invalidate (i.e. , had the complained-of disclosure been attached to the prenuptial agreement, Defendant would not have signed it as written).
"It is well settled that the failure of a spouse to fully disclose his or her financial condition is insufficient to set aside a prenuptial agreement absent active concealment or misrepresentation sufficient to constitute fraud." Rapp v. Rapp , 58 Misc 3d 1224(A), 2018 WL 1041692 (Table), 2018 NY Slip Op. 50255(U) (Sup. Ct., West. Co., Feb. 13, 2018) (citations omitted). For example, in Anonymous v. Anonymous , the Appellate Division, First Department held that "Defendant's failure to disclose the entirety of his financial interests is ... not a reason to vitiate the contract ... [where] Plaintiff was well acquainted with defendant's assets, and she specifically acknowledged in the agreement that the amounts she would receive ‘are so significantly less than either [defendant's] assets or annual income that the precise amount of [his] assets and income is irrelevant to her decision to enter into this Agreement and the enforceability of this Agreement.’ " Anonymous v. Anonymous , 123 AD3d 581, 583, 999 N.Y.S.2d 386 (1st Dept. 2014). Similarly, in Gottlieb , the Appellate Division, First Department upheld an agreement, although the wife was "unaware of the husband's exact income at the time she executed the agreement" because (1) "there is no claim by the wife that the husband concealed or misrepresented his income," (2) "the wife lived with the husband and was aware of the luxurious lifestyle his income and assets afforded, even if the precise amount of the income was unknown to her," and (3) the parties were aware of the "substantial financial disparity" between them at the time of execution. Gottlieb v. Gottlieb , 138 AD3d 30, 38—39, 25 N.Y.S.3d 90 (1st Dept.), leave to appeal dismissed , 27 NY3d 1125, 57 N.E.3d 73 (2016). Similarly, here, the Husband was aware of the overall financial circumstances of the Wife, and continued to be aware of them when he reaffirmed the prenuptial agreement in 2014 and 2016, and there is no indication that there was intentional concealment of the Wife's circumstances, or that this information would have made any difference concerning the signing of the Prenuptial Agreement.
Were the Agreements One-Sided?
Defendant alleges that the Prenuptial Agreement was too one-sided in favor of Plaintiff, who received the benefit of the New Jersey house (except for Defendant's life estate). Defendant alleges that there was no benefit to him from the New York apartment succession rights provision, and Plaintiff did not comply with signing HIPAA, executor, and power of attorney documents. As discussed above, however, both sides benefited from the agreement: Both sides waived maintenance, equitable distribution, and right of election, and both kept much of their property separate. Defendant apparently had greater assets than Plaintiff going into the marriage, so the "separate property" provision and waiver of right of election likely benefited him more than her, as opposed to the parties comingling their assets. Waiver of the right of election of a surviving spouse against the other's estate was likely important to each of the parties, both of whom have children from prior marriages. Defendant retained a life estate in the New Jersey house, although not a fee absolute. Had the Wife predeceased him while they were residents in the New York apartment, he would have succeeded to that apartment's below-market rent-stabilized lease if he met the succession-rights standards, and would have been able to have his other or future family members, if they became residents in the apartment, then succeed him to the lease. Any pension or estate bequests were limited and required only during the marriage. When viewed on its own, a life estate in the New Jersey house, as opposed to owning it free and clear, may be an unhappy bargain for Defendant. It is not, in any case, the only substantive provision in the Prenuptial Agreement and its two subsequent amendments, each of which reaffirmed the Prenuptial Agreement.
As noted supra p. 4, Defendant benefited by preplanning for catastrophic medical expenses and arranging for less costly spend-down expenses to become healthcare eligible. The Wife promised to care for him during a major illness (and in 2016, she did care for him after his * * *surgery, see D. Aff. § 73: "On * * *, 2016, I underwent * * * surgery and Plaintiff cared for me. Everything was wonderful for the next few months"). The Wife may have cared for him in the future, as well, but she did not want to become impoverished by fully funding his long-term medical and personal care. The Wife asserts that this common understanding underlay, at least in part, the transfer of the New Jersey house to her while the Husband retained the life estate. P. Reply at § 19-23. Thus, the Husband benefited from long-term financial and healthcare planning perspectives from the transfer and still stands to benefit tremendously should his long-term medical expenses become catastrophic in nature. The court need not, however, rely on this reason for the provision, and instead, reviews the agreements as a whole.
Defendant argues that Plaintiff's offer to include him as a co-tenant on the rent-stabilized New York apartment lease, so that he could have succession rights if she predeceased him, was illusory and even fraudulent. He argues that he did not understand that eligibility for succession rights required him to be a resident in the apartment, and that if he resided primarily in the New Jersey house, the offered succession rights would be illusory, and that Plaintiff did not explain this residence requirement to him. What is unsaid in the papers, but would be necessary for his allegation to have any merit, is whether Plaintiff had an affirmative duty to explain the requirements for succession, sufficient to invalidate the prenuptial if she failed such a duty. There is no such duty. Defendant was capable to research or to ask his attorney(s) about succession rules before signing the Prenuptial Agreement, to determine whether this would be a meaningful or helpful provision for him. Additionally, Defendant signed documents in * * *2014 and * * *2014 that fully set out these succession rules.
The * * * and * * *2014 documents signed by both parties explained succession rights in detail. Specifically, in * * * 2014, the parties signed a New York lease, which stated the tenancy and succession rights, and in * * * 2014, they signed a separate notice expressly dedicated to non-eviction, lease renewal, and succession rights and residence requirements (See P. Aff, Ex. I, lease signed by Plaintiff and Defendant on * * * 2014 and "Notice to Owner of Family Members Residing With the Named Tenant In The Apartment Who May Be Entitled To Succession Rights/Protection From Eviction," signed by Plaintiff and Defendant on * * * 2014).
Defendant, in his papers, argues that Plaintiff merely told him where to sign the lease, and that he did so without reading either the October-signed lease or the November-signed notice. (D's Aff at § 31-32). Defendant does not cite any law for the proposition that he is immunized from being charged with knowledge of the notice and lease documents that he signed merely by not reading them first. Defendant was fully capable of reading them, was an experienced businessman, fluent in English, with extensive experience in reviewing and signing contracts in business and real estate. "A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents." Anderson v. Dinkes & Schwitzer, P.C. , 150 AD3d 805, 806, 56 N.Y.S.3d 127 (2d Dept. 2017) (citations omitted). Although "there are situations where an instrument will be deemed void because the signer was unaware of the nature of the instrument he or she was signing" such as where "the signer is illiterate, or blind, or ignorant of the [foreign] language of the writing, and the contents thereof are misread or misrepresented to him [or her] by the other party, or even by a stranger" ( Cash v. Titan Fin. Servs., Inc. , 58 AD3d 785, 788, 873 N.Y.S.2d 642 (2d Dept. 2009) (emphasis added ) (citing Pimpinello v. Swift & Co. , 253 NY 159, 163, 170 N.E. 530, 531 (1930) ), those exceptions are not applicable here. Defendant is charged with knowledge of the lease and notice language he signed in * * * and * * * 2014. He then reaffirmed the Prenuptial Agreement twice, in * * * 2014, and again in 2016, after signing the lease and notice discussed above. He cannot, therefore, claim that he did not understand the residency requirement, let alone use that lack of understanding to show that the New York apartment tenancy provisions were "illusory," or that this would be sufficient to invalidate the entire Prenuptial Agreement and its two subsequent reaffirming amendments.
The parties dispute whether New York or New Jersey were the primary residence of the parties. Defendant argues that he does not see the "value" of potential succession rights to the rent-stabilized lease since he did not become a "resident" of the New York apartment, and would not have as long as he remained a New Jersey resident in the New Jersey house. What actually happened during the parties' relatively short marriage does not, however, mean that the apartment provision was valueless. Plaintiff could have resided in the apartment during the marriage, such that he could have been considered a resident. And, as explained in the lease they signed, had Plaintiff predeceased Defendant during such a residence, he would have been eligible to renew the below-market rent-stabilized lease as a tenant. Additionally, his children, grandchildren, or other family members could also succeed to the below-market rent-stabilized lease in the future, should they meet the residency requirements. In addition, it is well-known that a number of tenants living in below-market rent-stabilized apartments in the neighborhood of the apartment in question sometimes receive substantial buy-outs from owners who may wish to take appropriate steps to raise the rents to market rates.
Relatedly, Defendant argues that the Prenuptial Agreement should be set aside for lack of consideration, again placing zero value on the New York apartment provision. (D. Law Mem. At 20-22). Defendant cites the figures in Plaintiff's financial questionnaire that she emailed to his financial advisor prior to the meeting with Plaintiff, Defendant, and the Financial Advisor, which he now alleges that he himself did not have prior to these proceedings. Defendant cites the value Plaintiff assigned to the apartment at that time — $0 (D. Mem. Law at 22). Presumably, the $0 was inserted because a rent-stabilized lease cannot be freely sold. Inability to freely sell, however, does not mean that there is no value to a tenant. There is a financially-meaningful expectation value to being added as a tenant to a rent-stabilized apartment or potentially receiving a buy-out offer, and therefore, this provision cannot be dismissed as having "no value" such that the Prenuptial Agreement could fail for "lack of consideration," as argued by Defendant. Defendant also attempts to compare the dollar values of the New Jersey house against the New York lease, to demonstrate the alleged inadequacy of the "exchange," although, of course, the Prenuptial Agreement contained numerous other provisions that benefited Defendant or both parties, including waivers of maintenance, equitable distribution, and right of election against the estate by a surviving spouse.
Defendant also claims that because Plaintiff did not sign the HIPAA, executor, and power of attorney documents contemplated by the 2014 Prenuptial Agreement, while he did sign those agreements, the effect was too one-sided. Setting aside whether there was sufficient other consideration in the agreement, the alleged one-sidedness of these provisions is mooted by the parties' 2016 Second Amendment, duly executed by both parties, which deleted their obligations to name each other as executors, or to sign HIPAAs or powers of attorney naming the other, making this instead a voluntary, not a mandatory provision.
Alleged Repudiation of the Prenuptial Agreement
Defendant claims that because Plaintiff did not comply with part of the Prenuptial Agreement, she "repudiated" the agreement, and the entire agreement can now be rescinded. Plaintiff, arguably, did fail to sign the HIPAA, executor, and power of attorney documents contemplated by the 2014 Prenuptial Agreement. (Def. Mem. Law at 24). It is not relevant at this stage of the litigation whether she attempted to sign some of these documents, or rescinded some, or even whether she had valid reasons to not sign all of the documents (Def. Aff. §§ 58-60).
This alleged "failure" is moot here, however, where the 2016 Second Amendment, duly executed by both parties, deleted their obligations to name each other as executors, or to sign HIPAAs or powers of attorney naming the other, as noted above. The Husband cannot now seek to rescind the entire Prenuptial Agreement and both amendments that ratified it when he agreed to waive the very provision about which he now complains.
Additionally, even without the 2016 Second Amendment, the failure to sign these documents would not be sufficient to rescind or repudiate the agreement. This is similar to the husband's failure in the 2014 Anonymous case to transfer a Michigan property to his wife, which he was supposed to do under their prenuptial agreement: In that case, the wife may have had a cause of action for breach of contract and may have been entitled to receive the value of that Michigan property, but this failure did not invalidate their entire prenuptial, and was not evidence of fraud:
Plaintiff argues that defendant's admitted failure to transfer to her one of the properties he owns in Michigan pursuant to the terms of the agreement is evidence of fraud. However, the record establishes shows that in the 12 years of the marriage, no demand was made for the transfer of this particular property. In fact, plaintiff apparently raised no objection when this property was sold during the course of the marriage. Defendant contends that the failure to effect a formal transfer of this property was an oversight and has agreed to give plaintiff the proceeds of the sale, plus interest, as part of an equitable distribution settlement. Thus, plaintiff, who never raised this issue prior to the commencement of this action, failed to demonstrate that she was fraudulently induced into signing the agreement by defendant's promise to transfer that property to her. At best, she may have a cause of action for breach of contract and is entitled to receive the value of the property in equitable distribution, as indicated by the court.
Anonymous v. Anonymous , 123 AD3d 581, 583, 999 N.Y.S.2d 386 (1st Dept. 2014).
Here, as in the 2014 Anonymous case, the complaining spouse does not sufficiently connect the other spouse's failure to perform specific acts called for in the prenuptial agreement to proof of fraudulent inducement to enter into that entire prenuptial agreement in the first instance.
Was Plaintiff Defendant's Attorney?
Defendant also argues that he relied on his future wife as "his" attorney, rather than on his actual attorney, Mr. G.. D. Mem. Law at 12-16. Although Plaintiff apparently negotiated directly with him and discussed issues with him, sometimes in colorful and colloquial language, over emails (and perhaps in person or over the telephone), Defendant does not state either that he believed at that time that she was his attorney advocating for him in their prenuptial and amendment negotiations (as opposed to advocating for her side in their negotiation) or explain how such a belief would have been reasonable or supported.
Defendant merely argues that because she was an attorney and she sent him multiple emails advocating for her position and against his, including by disparaging his and his attorneys' positions, that therefore, this made her Defendant's attorney. He does not, however, explain such an incredible proposition, especially in the face of numerous documents he signed and received. His attorney wrote emails to him and the other side, specifically complaining about the provisions concerning the New Jersey house, which provision the Husband is now seeking to rescind. Defendant, therefore, was on notice from both his attorney, Mr. G., and his future wife that Defendant's attorney was recommending one outcome (that Defendant not give up all but a life estate in his New Jersey house), and that his future wife wanted a different outcome (that Defendant would give up all of his New Jersey house to her except for his life estate). Defendant also complains that he did not fully understand the exact value of a life estate and wished that his future wife had explained the remainder's and life estate's valuations to him better. He does not, however, provide a cite for any such requirement that one spouse must fully calculate and disclose the value of each prenuptial provision that spouse would want to enforce. Notably, he does not argue that he did not understand what a life estate is, just that he did not understand its monetary valuation . Indeed, even in 2014, around the time of the signing, Defendant wrote to his attorney that he felt sufficiently protected: "I know I lose the asset of my house, but I have sufficient protections that I can live in it or eventually substitute" for a replacement property within 50 miles of New York City, a distance he negotiated in one of the drafts. (P. Ex. G; see also P Reply 5 n.7). The fact that giving up his house except for a life estate, especially if viewed in a vacuum, may appear to some to be a bad bargain, does not invalidate the prenuptial agreement or serve as proof that Plaintiff defrauded Defendant, or was acting as "his" attorney.
Defendant also argues that the Wife allegedly telling him to sign the * * * 2014 lease and * * * 2014 notice without him first reading either documents is another example of Plaintiff acting as "his" attorney, telling him to sign without reading. Even assuming that Plaintiff told Defendant to sign the lease and the notice without reading them, at most, he could argue that she acted as his attorney in those lease and notice signings, if he wanted to attempt to invalidate his signature on the lease (which he is not trying to do), although even that would be tenuous. It is not clear, however, how her alleged * * * 2014 and * * * 2014 statements about the lease and notice could make her his attorney in the * * * 2014 negotiation and signing of the prenuptial agreement, several months earlier. Defendant does not cite caselaw to support his proposition, and he does not present sufficient facts to connect this case to circumstances in Greiff and its progeny.
Plaintiff has established her right to enforce the prenuptial agreement and its amendments. The court grants plaintiff's motion for summary judgment.
This constitutes the Decision and Order of the Court.
Parties, and counsel if any, are hereby directed to jointly contact the Part 44 court attorney to schedule a hearing as to the divorce cause of action.