36 Misc. 3d 404
N.Y. Sup. Ct.2012Background
- Married in 1989, they separated in 2007 and entered a 2008 separation agreement.
- The separation agreement bars either party from filing for divorce until the marital apartment is sold.
- The apartment, a West 23rd St. Manhattan condo, remains unsold four-plus years later.
- Husband resides with a new partner and seeks divorce and declaratory relief invalidating the no-divorce clause.
- Wife argues the clause is a valid condition precedent and, if void, that the entire agreement should fail or be substantially modified.
- Court proceedings include husband's cross-claims for divorce grounds and declaratory relief, wife’s affirmative defenses and counterclaims, and wife’s cross-motion for various relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the no-divorce clause violate public policy? | Filstein contends it defeats the public policy favoring divorce. | Bromberg argues it is a valid condition precedent and not a public-policy violation. | No; the clause violates public policy and is unenforceable. |
| Is the clause enforceable as a condition precedent or independent contract term? | Clause may be a permissible condition precedent. | Clause should be enforced as a contractual condition. | Enforceability as a condition precedent does not save it from public-policy invalidation. |
| Should the no-divorce clause lead to voiding the entire separation agreement? | Severability should preserve the rest of the agreement. | If void, the entire agreement may be invalid. | Severability applies; rest of the agreement remains valid. |
| What is the appropriate disposition of the remaining defenses and counterclaims? | Some defenses/counterclaims survive despite invalidation of the clause. | Many defenses/counterclaims lack merit after invalidation of the clause. | Most defenses dismissed; some counterclaims survive; cross-motion denied. |
Key Cases Cited
- Gleason v Gleason, 26 N.Y.2d 28 (N.Y. 1970) (public policy favoring dissolution of dead marriages; marriage not protected if dead)
- Covington v. Walker, 3 N.Y.3d 287 (N.Y. 2004) (historical development of divorce grounds)
- Christian v. Christian, 42 N.Y.2d 63 (N.Y. 1977) (courts protect separation agreements when inequity is not present)
- McKeon v. McKeon, 78 A.D.3d 667 (2d Dept. 2010) ( postnuptial agreements not violative of public policy if wife can still divorce)
- Gleason v. Gleason, 26 N.Y.2d 28 (N.Y. 1970) (public policy on dead marriages; justify allowing dissolution)
- Strong v. Dubin, 48 A.D.3d 232 (1st Dept. 2008) (maintenance waiver enforceable if no undue influence)
- Doukas v. Doukas, 47 A.D.3d 753 (2d Dept. 2008) (unconscionability standard for separation agreements)
- Jessup v. LaBonte, 289 A.D.2d 295 (2d Dept. 2001) (severability of void clauses in separation agreements)
- Taft v. Taft, 156 A.D.2d 444 (2d Dept. 1989) (severability and enforceability of separation agreements)