By means of this action, C.S. ("Wife"), fifty-one (51) years of age, and her husband, L. S.

("Husband"), sixty-six (66) years of age, shall obtain a divorce. For nineteen years prior to the institution of this action the parties were engaged in an intimate relationship; they were married for the latter eleven years. Wife is a part-time teacher's assistant earning approximately $5,000 annually. Husband is a successful business owner with assets of several million dollars. The parties' 2011 joint federal income tax return reflects earnings by Husband of over $1,000,000. Nonetheless, if Husband's present motion before the court is granted, upon the parties' divorce Wife will be left no home, no assets, no bank accounts and no maintenance. This is the effect of a prenuptial agreement executed by the parties that Husband now seeks to enforce.

The validity and circumstances surrounding the execution of that agreement was the subject of a hearing before this Court in April of this year. At the hearing, Wife demonstrated that she was presented with the agreement days before her wedding on a "take it or leave it" basis, given no opportunity to review it even overnight, and was "represented" by an attorney she was first introduced to upon being handed the agreement to sign - an attorney chosen by Husband's lawyer from among his office suite mates. Because the agreement was the result of overreaching [*2]and was unconscionable when signed, this court holds it to be unenforceable and denies Husband's motion for a judgment based upon its terms and grants Wife's cross-motion to set it aside.

FACTUAL BACKGROUND

In 1993, the parties met and started dating. At the time, Wife was living in Delaware with her two children from a marriage that was in the midst of a divorce. Husband resided in Manhasset, New York and himself was near the end of a long, painful divorce. In 1994, Wife moved into a rental unit in the nearby town of Port Washington, New York where her mother also resided. Husband and Wife saw each other every day thereafter but agreed not to move in with each other for the sake of the children, who were then five and seven years old.

For approximately eight years the parties continued their relationship in this fashion. The parties would occasionally sleep at each other's residences. Husband was generous to Wife during this period, paying for the parties' vacations, entertainment, frequent dinners, Wife's major car repairs and her children's summer camp. Approximately two years into their relationship Wife brought up the subject of marriage. Because of his painful divorce, Husband was not anxious to remarry.

Nonetheless, in August of 2001, Husband suggested that the parties get married before the start of the coming school year so that Wife and her children could move into Husband's Manhasset home and the children could enroll in the Manhasset school district. By that time, Husband loved and treated Wife's children as his own. Wife, who had grown frustrated that the couple had not yet married, readily agreed and quickly notified her landlord that she would be moving out and disposed of her furniture.

Unbeknownst to Wife, Husband at least a month earlier had requested that his long-time attorney, William Cahill, Esq., draft a prenuptial agreement. Husband understandably wanted to ensure that there would be no repeat performance of his prior protracted divorce. During the course of their relationship Husband and Wife had discussed signing a prenuptial agreement on several occasions and Wife had expressed her willingness to sign one.

Cahill specializes in trusts and estates and real estate tax issues and lacked matrimonial experience. He informed Husband when they first spoke that Wife was going to need to hire a lawyer. Cahill drafted an agreement and forwarded to Husband for his review on July 19, 2001. Husband does not recall receiving the draft agreement, reviewing its terms or discussing it with Cahill. He informed Husband when they first spoke on the topic earlier that month that Wife was going to need to hire a lawyer.

Sometime in August, Husband and Cahill again spoke. Husband informed Cahill that Wife was having difficulty obtaining a lawyer and that Cahill should find her one. Approximately a week before the agreement was signed Cahill approached his office suite mate, Charles Jacobson, Esq., and asked him if he would represent Wife. Cahill explained that Husband would be paying his fee. Jacobson, a commercial litigator who had some matrimonial experience, agreed. Cahill gave Jacobson a copy of the agreement and informed him that its terms were non-negotiable.

Notwithstanding Husband's conversations with Cahill, Husband never informed Wife that she should seek an attorney concerning the agreement and therefore Wife never told Husband that she was having trouble hiring one. Indeed, Husband did not inform Wife that she would be required to sign a prenuptial agreement until either the night before or the morning of [*3]the appointment to sign the agreement at Cahill's office on September 5, 2001.^[FN1] The wedding was scheduled for September 7, 2001.

On September 5, at Husband's suggestion, Husband drove Wife to work so that he could later pick her up there and drive her to Cahill's office to sign the agreement. Wife was upset when Husband arrived later that day. Once at Cahill's office, Wife was introduced to Jacobson, who took Wife into a conference room to speak with her. In the meantime, Husband met with Cahill and signed the agreement with no changes being made.

Wife was initially quiet as Jacobson introduced himself and his role. Jacobson doesn't recall reviewing any financial information from the Husband or Wife. Jacobson did not ask Wife any questions concerning her financial situation or her background. Indeed, he asked her no questions at all. Instead, Jacobson proceeded to explained the terms of the agreement to Wife and as he did so she began to sob. Jacobson vividly recalls this meeting with Wife over 11 years later because it was an extraordinarily emotional experience for Wife, and thus for him.

Jacobson believed that the agreement was very one-sided in favor of Husband, yet he did not seek to negotiate any of its terms or recommend to Wife that she attempt to do so. Instead, he informed her that it was a take-it-or leave-it proposition. Wife, still crying, then spoke alone with Husband for about 15 - 20 minutes. At some point she stated that it was the worst day of her life. Wife then signed the agreement. It was the only time Jacobson recalls that a client first saw and signed a prenuptial agreement on the same day. The entire process took 45 minutes.LEGAL ANALYSIS

The right of parties to conduct their affairs through private agreements is so fundamental that it is embedded in our federal Constitution. United States Constitution, Article 1, section 10, clause 1 ("No State shall...pass any...Law impairing the Obligation of Contracts..."). In the context of marital relations, this right is explicitly recognized in New York's statutory divorce laws. See Domestic Relations Law § 236(B)(3) ("An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action..."). Our courts have recognized in the face of legal challenges to prenuptial agreements that there is a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements." Bloomfield v. Bloomfield, 97 NY2d 188, 193 (2001), quoting Matter of Greiff, 92 NY2d 341, 344 (1998). Duly executed prenuptial agreements are generally valid and enforceable. Van Kipnis v. Van Kipnis, 11 NY3d 573 (2008).

Nonetheless, the freedom to contract is not absolute. In recognition of the less admirable and gullible traits of human nature, legislatures, executive branches and the courts have instituted laws and rules restricting, regulating, and where appropriate, reversing contracts. For example, if an unscrupulous (or even merely persuasive) salesman comes to your home and [*4]convinces you to purchase an expensive household item you don't truly need, or upon reflection want, you have three full business days by law to change your mind and cancel the contract. 16 CFR 429 (1995). A contract made by one who lacks the mental capacity is voidable. See Ortelere v. Teachers' Retirement Bd. Of City of New York, 25 NY2d 196 (1969). And it has long been recognized that where a confidential or fiduciary relationship exists between parties, an attempt to gain an advantage in contract through the utilization of undue or controlling influence will not be countenanced. See Allen v. La Vaud, 213 NY 322 (1915); Matter of LoGuidice, 186 AD2d 659 (2d Dept. 1992).

While the law has long favored marital agreements and seeks to uphold them (See DeCicicco v. Schweitzer, 221 NY 431, 439 (1917)), marital agreements are not immune from the public policy considerations that engage the attention and oversight of the courts. See Matter of Greiff, 92 NY2d at 345 (prenuptial agreements are not insulated from "typical contract avoidances"). Nor should they be, given the very nature of the parties' relationship that carries beyond trust into the realm of the intimate. Surely, a fiancé or spouse is presumed more persuasive than a salesman at the door; and the outsized influence romantic partners may exercise is often observed. Courts have therefore "thrown their cloak of protection" over marital agreements "to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity." Petracca v. Petracca, 101 AD2d 695, 699 (2d Dept. 2012) quoting Christian v. Christian, 42 NY2d 63, 72 (1977). These agreements include both post-nuptial and pre-nuptial agreements. See Matter of Greiff, 92 NY.2d at 347 (recognizing the "unique character of the inchoate bond between prospective spouses - a relationship by its nature permeated with trust, confidence, honesty and reliance"; Cioffi-Petrakis, 102 AD3d 766 (2d Dept. 2013).

Husband here asserts that the parties' agreement can withstand the scrutiny of this Court's examination. And given the nature of the parties' relationship he has the burden of establishing that this is so. In Greiff, the Court of Appeals instructed that in determining the parties' respective burdens where a pre-nuptial agreement is challenged, courts should calibrate and apply the principles of the various cases discussed therein and decide whether the "nature of the relationship between the couple at the time they executed their prenuptial agreemen[t] rose to the level to shift the burden to the proponen[t] of the agreemen[t] to prove freedom from fraud, deception or undue influence." Matter of Greiff, 92 NY2d at 347.

The nature of the parties' relationship here calls for the shifting of the burden onto Husband. Husband concedes that during the six years leading up to the execution of the agreement Wife anxiously wanted to wed; Husband not so much. Husband asserts that during this period he made his position clear: if he were ever to wed a pre-nuptial agreement would be required. Wife's outsized trust and dependence upon Husband is perhaps best reflected in her responsive entreaty: "I will sign any piece of paper you put in front of me and I won't even read it."

Wife, who was raising two young boys on her own and was estranged from her parents, was also financially dependent upon Husband. As set forth above, Husband was the successful and wealthy business owner who paid for everything the couple did together, including dinners, vacations and various entertainment activities. Husband paid for Wife's car repairs and summer camp for her boys, as well as for the boys' various sporting equipment throughout the years. After Husband proposed, but before the first subsequent mention of a pre-nup, Wife had given [*5]up her rental home and disposed of her furniture. As a result, Wife felt financially vulnerable and disadvantaged when Husband informed her at the eleventh hour that she would be driven to his lawyer's office to sign a prenuptial agreement.

Although the present effect of the Agreement is to leave Wife nearly destitute, that does not end the court's inquiry; it is not even the starting point. Cf. Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012) (in the absence of inequitable conduct at time of execution application of agreement governing disposition of assets of 15 year marriage held not unconscionable where one spouse retained property valued at $4.6 million while other spouse entitled only to IRA account valued at $30,550). Instead, the substance of the agreement itself must be examined as well as the circumstances surrounding its execution.

Husband argues that the Agreement, on its face, is not inequitable. He points to provisions requiring him to maintain life insurance policies with benefits of nearly $600,000 for Wife to be paid to her upon his death. He is obligated to bequeath to Wife in his will the marital residence he owns in Manhasset (subject to any outstanding mortgage). All furnishings acquired by the parties for the marital residence are deemed to be joint or marital property of the parties except for art, antiques and collectibles acquired as separate property by either party. All personal property acquired by the parties in joint names is deemed marital, as is all real estate - provided it is acquired as tenants by entirety or with a right of survivorship. Finally, Wife gets to keep all gifts purchased for her by Husband.

As Wife correctly points out, however, there is less to the Agreement than at first meets the eye. The most significant provisions benefitting Wife - the house and insurance proceeds - only apply upon Husband's death and only if the parties remain married until that time. Otherwise, these provisions pre-decease Husband. Categorizing after-acquired household furniture, personal property and real estate as marital property provides nothing the law doesn't already presume. See Shah v. Shah, 100 AD3d 734 (2d Dept. 2012 (property acquired during the marriage is presumed to be marital property). Wife is then left only with the gifts given to her by Husband - in which Husband gallantly agrees not to seek an equitable interest.

Measured against the right to keep her own gifts are the following rights that Wife agreed to waive:

•all interest in Husband's retirement or pension benefits;

•all rights to receive maintenance or any other support;

•any increase in the value of Husband's business;

•all interest in after-acquired real property titled in Husband's name;

•all interest in after-acquired personal property titled in Husband's name;

•any interest in the appreciation of the marital residence;

•any right to remain in the residence; and,

•all rights to elect against Husband's estate pursuant to EPTL §5-1.1-A.

The scales of this equitable balance tip grossly in Husband's favor to the detriment of [*6]Wife. Although Husband waived many of the same rights, it was Wife, as the non-monied spouse lacking control over the couple's financial decisions, who gave away something of value.

It was not necessary to wait until this final chapter of the parties' relationship to observe the one-sidedness and inequity of their bargain. Indeed, it was readily apparent to Wife's own attorney when he presented it to her. Nonetheless, he did not advise her to seek to negotiate any of its terms or refuse to sign it. Given the nature and magnitude of the rights she waived, particularly the relinquishment of her property rights in after-acquired real and personal property and her waiver of all inheritance rights, and in light of the vast disparity in the parties' net worth and earnings, Wife has demonstrated that the terms of the Agreement are manifestly unfair, giving rise to an inference of overreaching. Petracca at 698, 699.^[FN2]

As in Petracca, the inference of overreaching here is bolstered by evidence submitted at the hearing regarding the circumstances which led to the execution of the Agreement. Wife was afforded no opportunity to obtain counsel of her choice to represent her. Instead she was introduced to her attorney, paid for by Husband and selected by Husband's lawyer, at the time of execution. She was afforded no meaningful opportunity to consider and reflect upon the terms of the Agreement thrust upon her (not even 24 hours; indeed not even a full hour). Wife was not given an opportunity to request better or different terms but was advised the Agreement was on a

take it or leave it basis. The execution was organized so that Wife did not even have independent means to walk out and leave Husband's attorney's law office if she so desired; Husband arranged in advance to drive her to the office in his car. Everyone agrees that Wife broke down in tears upon being presented with the documents and that the experience was contemporaneously described by her as the "worst day of my life." All this after she had given up her rental apartment, disposed of her possessions and just days prior to the scheduled wedding.

In contrast, Husband coordinated at least one month in advance with his trusted counselor to draft the agreement. Husband also arranged with his lawyer to find a "suitable" attorney for Wife without her knowledge. The Agreement was sent to Husband at least one month in advance to review. Although Husband claimed not to recall seeing the Agreement before he signed it or to know its terms in advance, this Court finds such testimony to be incredible, particularly since his lawyer testified that he sent Husband an advance draft.

In sum, it appears that Husband determined that he could take advantage of his Wife's promise to "sign anything" in exchange for a marriage proposal - and she did just that.

Husband correctly points out that a threat to call off a marriage alone is insufficient to strike down an agreement on the grounds of duress. See Weinstein v Weinstein, 36 AD2d 797 (2nd Dept. 2007). Nor, by itself, is the procurement and payment by a spouse of the other party's counsel determinative. See Strong v Dubin, 48 AD3d 232 (1st Dept. 2008). Nonetheless, when viewed in the totality of all of the circumstances presented here it is clear that Husband has failed to meet his burden of disproving overreaching; Wife's will was overcome resulting in an [*7]unconscionable agreement. Cf. E.C.P. v.P.P., 33 Misc 3d 1233 (Sup. Ct. Nassau Co. 2011) aff'd 103 AD3d 466 (2d Dept. 2013); Cioffi-Petrakis v Petrakis (court viewed totality of circumstances surrounding execution of pre-nuptial agreement).

Thus, this Court finds that the Agreement is to be set aside.^[FN3] In so holding, this Court does not mean to imply that Husband was wrong to desire to enter into an agreement that would clearly spell out the parties' rights upon a termination of the marriage or his death. Such agreements are commonplace and serve understandable and laudable goals, particularly where as here the marriage is not the parties' first. Nonetheless, there are right ways and wrong ways to go about such things. To those who fear that setting aside agreements such as the one in this case will lead to uncertainty in the law and an inability to confidently manage one's affairs, one need only look to the multitude of decisions upholding marital agreements. One can predict with confidence that if each spouse retains a lawyer or his or her own choosing, is provided with a proposed agreement with sufficient time to give due consideration to the serious consequences of the proposed terms, is given fair and adequate disclosure, and is presented with an agreement that does not scream inequity or will leave one party practically destitute, it will be upheld. Unfortunately, that was not the case here and this court cannot turn back the clock and make it so.

For all of the aforesaid reasons, Husband's motion is denied and Wife's cross-motion is granted.

Any other relief requested not specifically addressed herein is denied.

This constitutes the DECISION and ORDER of this Court.

Dated:June 6, 2013

Mineola, NYE N T E R:

____________________________

LEONARD D. STEINMAN, J.S.C.