Contractual “Maintenance” Waiver Includes Claims to Temporary Maintenance
06 Apr 2016
Construing a provision in a prenuptial agreement in which the parties waived “any and all” claims to maintenance, the Appellate Division, First Department ruled that the contractual waiver included a spouse’s claims to temporary or “pendente lite” maintenance. Anonymous v Anonymous, No. 16483, ___ A.D.3d ___ (1st Dep’t, March 22, 2016). The decision has significant ramifications, inasmuch as temporary maintenance can be ordered during the pendency of a divorce proceeding, which can last for many years in some cases, to protect the non-monied spouse during the pendency of the litigation. According to the New York Law Journal, the temporary maintenance awarded by the court below was approximately $12,000 per month, N.Y.L.J., March 23, 2016 at 2, Col. 1. Careful drafting of the prenuptial agreement by counsel would have averted any issue for the courts to address had they simply included the specific terminology of “temporary maintenance” in the subject waiver provision. This would have avoided not only the risk of an adverse judicial decision, which in fact was the result in the lower court, but the significant legal costs of briefing the issue both before the lower court and the appellate court as well.