KROMBERG V. KROMBERG, 44 N.Y. 2d 718, 405 N.Y.S. 2d 451 (1978) is a decision that, I suspect, many of you are unfamiliar with. Indeed, if you were to read it, you might still not be clear as to its significance for us today as its essential holding is merely one of res judicata. The Court of Appeals did go on to state, however, that it would have affirmed the Appellate Division even if the issue were not so foreclosed, and that the contractual clause in question would have been upheld against public policy attack. What did the separation agreement in Kromberg state then? The case was pre-equitable distribution and the separation agreement provided for a sliding scale of support payments depending upon the husband’s income. It also provided for the transfer of the marital residence to the wife.
However, in addition it provided that, if the wife ever sued to invalidate the agreement or sought an increase in support, she was obligated to transfer the house back to herself and the husband as tenants in common. In other words, as a condition precedent to an attack on the agreement, the wife was required to “give back” a large portion of what she had gained from the agreement. The Court of Appeals, in commenting on this provision, noted that the fact that the relevant clause was phrased as a “penalty” did not “alter the fact that at all times the wife had a choice.” The Court further noted that “[a]ffording the wife the alternatives of adequate support [I presume they meant if a future increase were otherwise warranted] or sole ownership of the marital residence does not unlawfully contract away the husband’s obligation of support.” (Id. at 720, at 452).
