Contractual Forbearance From Starting a Divorce Action

There is no authority which requires individual consideration for each item in an agreement: consideration for the entire agreement is sufficient – the consideration supports every obligation in the agreement.¹⁴ Far from consideration needing to be coextensive or even proportionate, the value or measurability of the thing forborne or promised is not crucial so long as it is acceptable to the parties.¹⁵ The consideration which supports a contract need not be equal on both sides, if a minimal yielding of a position by one side promotes an agreement, then it will be deemed enforceable.¹⁶ It is competent for parties to make whatever contracts they please, so long as there is no fraud or deception or infringement of law; a hard bargain does not deprive a contract of validity.¹⁷

“Mutuality,” in the sense of requiring reciprocity, is not necessary when a promisor receives other valid consideration.¹⁸ The adequacy of consideration is not a proper subject for judicial scrutiny, the slightest consideration is sufficient to support the most onerous obligation,¹⁹ even if the consideration exchanged is grossly unequal or of dubious value.²⁰ Inadequacy is for the parties to consider at the time of making the agreement and not for the court when it is sought to be enforced.²¹ Courts do not need to measure the extent either of benefit to the promisor or of detriment to the promisee; if a person chooses to make an extravagant promise for an inadequate consideration, be it never so small, it is his own affair.²²

Jessup v. Weir, 168 AD2d 428 (2nd Dept., 1990), upheld a transfer of the wife’s property interest in exchange for the completion of her husband’s divorce action against her in time for her scheduled remarriage.

Dissolution of Marriage

It is settled “strong public policy” that the law’s purpose is to preserve the continuity of marriage rather than to destroy the marriage relationship.²³ All agreements that are supported by a consideration or an inducement tending to encourage the severance of the marriage are abhorrent to public policy, and are therefore illegal and unenforceable.²⁴ The subject provision in P.B. did no such thing. Stat. §§177, 240; DRL §236B(3).

P.B. commences the construction of an erroneous argument by stating: “Nowhere in DRL §236(B)(3) is there a provision specifying that agreements may contain waivers of a party’s fundamental right to seek a divorce after a year, or for that matter, any other kind of waiver.” P.B. misapplies Statutes §240:

As such, the “opt out” provisions of DRL §236(B)(3) [(1) wills and election against an estate; (2) property distribution; (3) spousal maintenance; and (4) custody and child support] do not provide legal cover to contracts purporting to opt out of the provisions of DRL §170. Even under this erroneous argument, a provision intertwined with spousal maintenance is protected under §236B(3), so that the not uncommon provision to withhold commencement of an action for divorce beyond the statutory minimum as a means of continuing medical insurance for the uncovered spouse indisputably falls under the §236(B)(3) umbrella.

Furthermore, P.B.’s argument regarding the absence of consideration fails again because the husband might otherwise have been obligated to contribute towards such insurance. Additionally, Stat. §177 provides: