Presumptive Calculations of Waived Maintenance: A Case of First Impression
4.16.2025
In January, a question of first impression in the context of prenuptial agreements came before the New York Supreme Court: Must a self-represented future spouse be provided with presumptive calculations of waived maintenance to knowingly waive that maintenance? Yes, the court held, he must.
In J.M. v. G.V.,[1] Justice Jeffrey S. Sunshine of Kings County considered enforcement of a prenuptial agreement. The parties had entered into a prenuptial agreement approximately one week before their 2018 marriage. In 2023, the plaintiff-wife commenced an action for divorce, and the defendant-husband moved for summary judgment to set aside the prenuptial agreement on the basis of fraud, unconscionability and overreaching.
The court addressed multiple legal questions surrounding prenuptial agreements, including burdens of proof, the importance of independent counsel and attorney’s fees. Most significantly, the decision addresses spousal maintenance waivers.
Factual Differences
The parties’ factual disputes are instructive. They disputed both their respective financial conditions and the circumstances surrounding the signing of the prenuptial agreement. According to the husband, when they signed the agreement, his net worth was $27,000 and his wife’s net worth was $455,000. He contended that after the marriage, he largely gave up his career as a photographer to care for their child full-time, earning $30,000 in 2022, while his wife earned over $155,000 that year. According to the wife, the couple lived primarily off her income as a pharmacist during their marriage. She claimed photography was the husband’s hobby, not career, and there was no substantial decrease in his earnings after he took on child-care responsibilities.
The parties also disagreed on the details surrounding the negotiation of the prenuptial agreement and the circumstances of its execution. According to the husband, he “had no input in the drafting and negotiation” of the prenuptial agreement and he was “required by her family” to sign for the marriage to go forward, which he did while “not represented by counsel.” He claimed that his wife never told him he should be represented by independent counsel and did not include him in relevant discussions with her lawyer. He asserted he was given a single opportunity to review the agreement before signing and claimed that had he been represented by an attorney at the time, that attorney would have advised him that the agreement’s terms were “manifestly unfair and one-sided.” Based on the terms of the prenuptial agreement, upon a divorce, the husband averred, he would be left with minimal funds while his wife’s assets would total over $1 million – most of which she acquired during the marriage.
The wife claimed otherwise, asserting that she told the husband he should hire independent counsel before signing the prenuptial agreement, but he declined to do so due to the cost. She also contended that the husband had more than one opportunity to review the agreement and that she offered him the option of marrying without the prenuptial agreement and signing a postnuptial agreement instead.
Court’s Holding
Justice Sunshine addressed several procedural issues before noting the “heavy presumption” that a “deliberated prepared and executed” prenuptial agreement is valid and the “very high burden” on a party challenging such an agreement. The court found that the husband’s allegations in this case did not rise to the level of making the entire prenuptial agreement unconscionable.
The court did, however, vacate one provision of the prenup – the waiver of spousal maintenance.
In New York, temporary and post-divorce maintenance are determined by the formula outlined in Domestic Relations Law Section 236. Parties who opt out of the statutory formula must do so in compliance with Domestic Relations Law Section 236(B)(3): “[I]n writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include . . . provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship . . . and provided that such terms were 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 language of the “spousal maintenance” provision and the “opting out provisions” in the parties’ prenuptial agreement is informative.
The spousal maintenance provision includes the maintenance guidelines set forth in the statute and further provides: “[Defendant-husband] will neither seek nor require any maintenance, temporary, permanent or otherwise, or support for himself from [plaintiff] and, therefore, no provision for support or maintenance for [defendant-husband] is made herein.”
The opting out provision reads: “Each party acknowledges that he/she has been advised of the provisions of New York Domestic Relations Law Section 236, Part B, Section 5-a (the Temporary Maintenance Presumption) . . . and each party specifically waives and opts out of the application of the Temporary Maintenance Presumption, the Post-Divorce Maintenance Presumption as well as ongoing support or spousal maintenance of any kind.”
The court found these provisions insufficient for the purposes of the husband’s waiver of spousal maintenance because they did not constitute a “knowing waiver.” The parties’ incomes and exact calculations were not included in the opt-out provision. In essence, the court found that the husband could not waive his right to spousal maintenance without being informed of the actual value he would receive in spousal support if it were determined by the statutory computational formula.
Key Considerations Moving Forward
As for technical requirements in prenuptial agreements, the holding’s implications are clear. It sets forth clear requirements for a waiver of spousal maintenance: “To satisfy the knowing waiver aspect of the maintenance guidelines statute, both parties must provide their incomes and the full calculation, as of the time they enter into the prenuptial agreement, where either or both parties are self-represented.”
Self-representation is a key factor throughout the decision, but the court’s seeming reliance on it as a determining factor raises additional questions. While the court makes very clear that prenuptial agreements should be enforced with the same intention as other contracts, hinging the waiver of rights on representation does not necessarily align with waiver of rights in other contexts. Individuals do waive rights in contracts even when they are not represented by counsel, and not all such waivers are problematic. One can imagine an instance where two financially sophisticated and similarly situated spouses opt to forgo individual attorneys and sign a prenuptial agreement lacking the full calculation. They may be self-represented, but their waivers are certainly “knowing.” Perhaps more concerning, a future court may be faced with an instance where a party represented by counsel is not provided calculations in a prenuptial agreement and is, therefore, not “knowing” in the full sense.
It bears noting that New York courts distinguish enforcement of spousal maintenance provisions from other contract provisions and even from other prenuptial agreement provisions.[2] Under New York Domestic Relations Law Section 236(B)(3), property distribution agreements – like other contracts – are “valid and enforceable in a matrimonial action” if they are “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” Only spousal maintenance and child support provisions “must receive a greater degree of scrutiny than ordinary contracts when considering whether they must be enforced.”[3]
It is well established in New York that a spousal support waiver is unconscionable, and therefore void, if it would lead to either party becoming at risk of being a public charge at the time of enforcement. New York General Obligations Law Section 5-311 provides: “a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” New York courts have repeatedly refused to enforce spousal support waivers based on this section.[4]
Clearly, if all the requirements of enforceability are met when a prenuptial agreement is entered into, but enforcement of the agreement upon a divorce would make one spouse a “public charge,” the relevant provision is unconscionable and therefore unenforceable. The same analysis presumably applies where one or both parties were represented by counsel when the agreement was entered into, as the circumstances of the agreement’s formation are not relevant in a determination of the later public-charge-based unconscionability.
Without the ability to see into the future, lawyers cannot ensure that spousal support waivers do not become unconscionable; we cannot state definitively that someone will not be at risk of becoming a public charge in five, 10 or 50 years. We can, however, eliminate some risk by complying with Judge Sunshine’s decision and including parties’ incomes and relevant calculations in prenuptial agreements going forward. And there is no need to limit those inclusions to instances where one party is unrepresented. A broader interpretation of the decision – and a more judicious approach – is to include necessary details in all future New York prenuptial agreements.
Sherri Sharma is a partner and founder of Mosberg Stambleck Sharma Gross in New York City. She has spent more than 15 years focusing exclusively on matrimonial and family law, including the equitable distribution of assets, custody, child and spousal support, as well as prenuptial and postnuptial agreements. This article appears in Family Law Review, a publication of the Family Law Section. For more information, please see NYSBA.ORG/FAMILY.
Endnotes:
[1] 2025 N.Y. Slip Op. 25004 (Sup. Ct., Kings Co. Jan. 2, 2025).
[2] See Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep’t 2016); Barocas v. Barocas, 94 A.D.3d 551 (1st Dep’t 2012).
[3] Anonymous v. Anonymous, 123 A.D.3d 581 (1st Dep’t 2014) (Saxe, J., concurring).
[4] See McEvoy v. McEvoy, 219 A.D.3d 1513 (2d Dep’t 2023); Taha v. Elzemity, 157 A.D.3d 744 (2d Dep’t 2018); Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001).
