When you utter the words “prenuptial agreement” to a matrimonial lawyer, more often than not you might instantly feel a sense of dread in the air. Some matrimonial lawyers are so adverse to prenuptial agreements that they tell me “I won’t do them anymore”. Other matrimonial lawyers I talk to say that prenuptial agreements should be banned altogether.
Alas, prenuptial agreements remain alive and well in New York, and so we, as matrimonial lawyers, must confront their ever-present complexities.
With that in mind, we turn to the critically important decision of Justice Jeffrey S. Sunshine in J.M. v. G.V., 2025 NY Slip Op 25004 (Kings Cty., January 2, 2025).
In J.M., the parties married in New York on May 23, 2018. One week prior, on May 16, 2018, the parties entered into a prenuptial agreement. The parties had one unemancipated child, born in September 2020. After the plaintiff-wife commenced an action for divorce, the defendant-husband moved for summary judgment to, inter alia, set aside the prenuptial agreement on the basis that the agreement “is unconscionable, fraudulent, and/or the result of overreaching”.
The husband was not represented by counsel during the negotiation and consummation of the prenuptial agreement. He asserted that the wife informed him that “if he wanted to marry her it was required by her family that he signed a prenuptial agreement”. According to the husband, when the prenuptial agreement was signed, the husband had a net worth of $27,000, and the wife had a net worth of over $455,000.
While the focus of this article will be spousal support waivers in prenuptial agreements, there are a multitude of important legal concepts that can be learned from reading the J.M. decision.
Some of those concepts are worth repeating before we dive into the spousal support waiver discussion. They include, but are not limited to, the following:
- First, the party seeking to set aside a prenuptial agreement bears a “heavy burden”; more than that, “courts should not redesign the bargain reached by the parties merely because in retrospect the provisions might be viewed as improvident or one-sided.” That is not to say that the burden won’t be met in certain cases, however a 50,000-foot visceral reaction along the lines of “that’s not fair” doesn’t cut it under New York law. If you’re wondering what could suffice under New York law to present a meritorious claim to set aside a prenuptial agreement based upon overreaching, it is worth reading this line in the J.M. decision: “To set aside a prenuptial agreement based on the product of overreaching, the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception” (emphasis added).
- Second, not having independent legal counsel during the negotiation of a prenuptial agreement “without more, does not establish over-reaching or require an automatic nullification of the agreement”.
- Third, as to the husband’s argument that he signed the prenuptial agreement under duress, the J.M. decision reminds us of the importance of boilerplate provisions: “[e]ach party fully acknowledges that he or she enters into this Agreement freely and voluntarily and for no reason other than the desire for the furtherance of their relationship in the marriage”.
- Fourth, and also worth noting on the subject of duress as this topic seems to rear its head often in the prenuptial agreement stratosphere, is the husband’s argument that “he believed that if he did not sign the prenuptial agreement the [wife] would have cancelled the wedding that was only seven (7) days away is insufficient to demonstrate duress”.
- Finally, a “title controls” prenuptial agreement – designating property titled in a party’s sole name as his/her separate property – is not, standing alone, improper: “the Court cannot invalidate the parties’ pre-nuptial agreement merely because enforcement of the agreement would result in the plaintiff-wife, the wealthier spouse, retaining all of the assets that she acquired during the marriage and titled in her name alone or because the terms appear imprudent in hindsight”.
Turning now to the main event in J.M., the decision explains that the “failure to provide the full presumptive calculation of the amount of maintenance that would be waived, to a self-represented spouse-to-be, at the time of execution of the prenuptial agreement appears to be one of first impression under New York Post-divorce Maintenance Guidelines”.
More specifically, the Court determined that in order for there to be a knowing waiver of maintenance by a self-represented litigant in the context of the prenuptial agreement, “the presumptive maintenance calculations” must be set forth in the agreement.
While parties remain “entitled to opt-out of the post-divorce maintenance computational formula”, the J.M. decision holds that 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 of both parties are self-represented because without the inclusion of incomes as of the date of the agreement and the full calculation under the guidelines statute formula, there could be no knowing waiver because the guidelines sum of maintenance would not be explicitly known and, as such, the parties could not expressly waive it”.
While the prenuptial agreement in J.M. recited the statutory formula in the Domestic Relations Law, “neither party’s income as of the time they entered into the agreement is included”.
In vacating the spousal maintenance provision in the parties’ prenuptial agreement, the Court stated that it “would be antithetical to the protections of the maintenance guidelines statute to hold that the requirement for knowing waiver for self-represented litigants does not apply to prenuptial agreements”.
As one additional point, the spousal support waiver also violated GOL 5-311 as it “made no affirmative representation as to whether the alleged waiver of support would not render either party a public charge.”
The decision to grant partial summary judgment to the husband and vacate the spousal support waiver in J.M. makes repeated references to the fact that the husband was a self-represented litigant. This begs the question: as matrimonial practitioners, is it best practice to assume that J.M. also applies to prenuptial agreements where both parties have counsel, i.e., should the maintenance calculations be set forth under those circumstances as well?
My answer is, going forward (post the date of the J.M. decision), a resounding “yes”, both for prenuptial agreements and postnuptial agreements. The decision appears to be tailored to the scenario involving a self-represented litigant. However, suppose you find yourself on the receiving end of a motion to set aside a spousal support waiver in a prenuptial agreement – executed after the date of the J.M. decision – that lacks the calculations. Do you really want to be in a position of saying “yes, but J.M. only applies to situations involving self-represented litigants”. I, for one, do not. This practice is stressful enough. Absent a clear directive from an appellate court stating otherwise, I can accept having to take the extra step of setting for the calculations. I think you should too.
"Prenuptial Agreement Spousal Support Waivers: Proceed With Caution," by Alan R. Feigenbaum, was published in the New York Law Journal on February 13, 2025.
Reprinted with permission from the February 13, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
