A Long Island woman could not convince a judge to tear up the separation and property settlement agreement she found on the Internet and had her husband sign, without advice from counsel.
Nassau County Supreme Court Justice Leonard Steinman (See Profile) deemed the agreement valid and enforceable, rejecting the wife's claims it should be disregarded.
"Wife has not sustained her burden of establishing that the Agreement was abandoned, was induced by fraud or the product of overreaching," Steinman wrote on Aug. 30 in E.C. v. L.C.
The couple married in 1986 and have three children, now between age 19 and 24. The couple's marriage fell apart in January 2010, when the husband, E.C., thought the wife, L.C., was having an affair. When the wife did not return home one evening, Steinman said the husband "caught her lying about her whereabouts." Once confronted, the wife suggested a divorce. Though the husband recommended marriage counseling, the wife hesitated and moved out of the couple's bedroom to the house's basement.
Several weeks later, the wife, an administrative assistant with a $27,000 annual salary who also works as a real estate agent, gave the husband, a computer technician making about $90,000 yearly, a form agreement she had downloaded from the Internet. She recommended they both sign it immediately and turn the agreement into a divorce when their youngest son graduated from high school in two years.
Under the agreement, the couple waived maintenance, said they would make "no demand for child support payments" and agreed to sell the marital home, equally dividing the proceeds.
The agreement said the parties could exchange financial statements or choose not to. The couple opted against exchanging financial information, said Steinman.
About a month after getting the agreement, the husband told the wife in April 2010 he would sign it. He did not ask to make any changes. Neither person was represented by counsel at the time. Days after the husband's consent, the couple signed it in front of a notary public and the wife then filed the agreement with the county clerk.
The husband filed for divorce in April 2012, saying the pair were living "separate and apart" and sought to incorporate the agreement signed two years earlier.
The wife also sought divorce on no-fault grounds, but she wanted to disregard the agreement, pressing for an equitable distribution of the couple's property, along with orders of maintenance and child support, among other things.
Steinman held a four-day hearing in May.
The wife contended the agreement had been abandoned because she and her husband allegedly continued to act as a married couple after signing it. Steinman said "the facts are to the contrary."
The judge observed that the wife moved out of the marital bedroom, the two never had sex again and the family stopped sharing meals. They filed separate taxes after executing the agreement and threw separate high school graduation parties for their son. Though they told their parents, siblings and some friends about their agreement to split up, they only told their son before his graduation.
The judge acknowledged some things did not change, like the continued existence of a joint checking account.
But that was for the couple's "convenience," Steinman said, adding, "Although not every aspect of the Agreement was slavishly followed, this is not surprising considering the Agreement was the product of an internet form and not tailored to the parties' particular circumstances."
The judge emphasized the parties waited to tell their son about the decision and noted the wife's admission they lived "separate private lives."
The wife argued the agreement was the product of overreaching, but Steinman said she "failed to provide any evidence that their marriage was an unequal partnership dominated by" the husband. He noted the wife took the initiative to have the agreement executed. Moreover, the judge observed she was a college graduate who worked before and during their marriage —"thus, her waiver of maintenance cannot be viewed as unconscionable."
The wife also argued she was fraudulently induced to sign the agreement, saying the two did not mean to use the agreement as a final document to be incorporated into the divorce judgment. She claimed the husband said the document would later be revised to include terms for maintenance and child support upon divorce, which the husband denied.
Steinman said there was "no evidence" to back the wife's claims the husband planned to modify the agreement later. "Fraudulent intent cannot be inferred merely from the fact of nonperformance," Steinman wrote. The wife's claims the parties did not mean to be bound to the agreement were undercut by its "unambiguous terms." The judge also said the parties "expressly" waived child support and maintenance.
In a footnote, Steinman noted the husband acknowledged the child support provision did not comply with the Child Support Standards Act but said the rest of the agreement could be severed and enforced.
Barry Gross of Parola & Gross of Wantagh represented the husband. He said his client's wife was "looking for a do-over, just trying every possible defense." Her testimony "rang hollow" Gross said, adding the sides would work out a new child support order.
Robert Grossman of Winter & Grossman of Garden City represented the wife.
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