DECISION & ORDER AFTER HEARING I. BRIEF BACKGROUND The parties in this action were married on May 17, 2012 and have one unemancipated child of the marriage Aris, who was born on October 7, 2011. In addition to Aris, Defendant Wife has one 17-year-old child from a previous marriage. The instant proceeding was commenced on April 26, 2019. Plaintiff Husband is currently the owner of numerous businesses and based on his 2019 Tax Filings earned income in the amount of $91,268.00. Defendant Wife is currently employed as Home Care Supervisor and based on her 2019 W-2 earned income in the amount of $57,330.38. The issues heard before this Court at Hearing are Defendant’s claims seeking to set aside the Prenuptial Agreement signed shortly before the parties’ marriage due to it being manifestly unfair, the product of overreaching and unconscionable. Also, before this Court and made a part of this Decision is Defendant’s motion for summary judgment. Defendant, through her Second Counterclaim seeks to set aside the Prenuptial Agreement on the basis that the Prenuptial Agreement is defective and unenforceable insofar as it is not dated and does not contain a proper acknowledgment. II. SUMMARY JUDGMENT (Motion No. 4) The proponent of a summary judgment motion must “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 19 N.Y.S.3d 488 (2015). “If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.” Id. citing to Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The court views the evidence in the light most favorable to the nonmoving party and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence. See Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 (2012). When there is any doubt as to the existence of triable issues, summary judgment should not be granted. McCummings v. New York City Tr. Auth., 81 N.Y.2d 923, 597 N.Y.S.2d 653 (1993). Since summary judgment deprives the litigant of his or her day in court, it is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). “However, when there is no genuine issue to be resolved at trial, the case should be summarily decided, as an unfounded reluctance to employ the summary judgment remedy will only serve to swell the trial calendar and deny other litigants the right to have their claims properly adjudicated.” Ricca v. Ricca, 15 Misc. 3d 1115(A), 839 N.Y.S.2d 436 (Sup. Ct. 2007), aff’d, 57 A.D.3d 868, 870 N.Y.S.2d 419 (2008) Defendant seeks an Order, pursuant to CPLR 3212, granting her summary judgment on her Second Counterclaim to declare the Prenuptial Agreement dated in or about May, 2012, invalid and unenforceable. Defendant argues that, pursuant to Domestic Relations Law §236(B)(3), a valid Prenuptial Agreement must be in writing, duly signed and acknowledged or proven in the manner required to entitle a deed to be recorded. Defendant argues that the Certificates of Acknowledgment affixed to the parties’ Agreement herein does not satisfy this requirement. Defendant’s Counterclaim alleges at paragraph 44, that “[t]he Prenuptial Agreement is facially defective and unenforceable, insofar as it is not dated and does not contain a proper acknowledgment in the form prescribed by the law.” In support of this argument, Defendant cites to Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) for the proposition that “Domestic Relations Law §236(B)(3)…recognizes no exception to the requirement of a formal acknowledgement,” and held that “the requisite formality explicitly specified in Domestic Relations Law §236(B)(3) is essential.” Id. Based on a review of the Prenuptial Agreement, the agreement at issue does not bear a specific date but rather states that it was “made this [blank] day of May, 2012″. The Certificates of Acknowledgment annexed to the Agreement likewise does not bear a date. As per a supporting Affidavit offered by Defendant, the Notary Public Suzanne Gillan, whose signature and stamp appears on the Agreement, passed away in December 2021. Therefore, Defendant argues that even if the Notary Public had some independent recollection of facts surrounding the acknowledgment that could cure the defect, her testimony is no longer available, and the defect cannot be cured by any other method. Defendant properly notes that Real Property Law §292, Real Property Law §303 and Real Property Law §306 must be read together to discern the requisites of a proper acknowledgment. See Galetta v. Galetta, 21 N.Y.3d 186, 969 NYS2d 826 (2013). The form of the certificate referenced in RPL §306 and set forth in Section 309-a of the Real Property Law, states that “[t]he certificate of an acknowledgment…must conform substantially with the following form, the blanks being properly filled…” The form set forth in Section 309-a of the Real Property Law provides blanks for the month, date and year. Defendant argues that even if the language in the parties’ Certificate of Acknowledgement was found to “conform substantially” with the uniform form, as the statute permits, there is no question that the blanks are not “properly filled,” as the statute requires. Defendant goes on to point out that the date is missing on both certificates and appears nowhere else in the document. As such, Defendant argues that the acknowledgments are not in a form prescribed by RPL §309-a which would entitle a deed to be recorded, and therefore the Agreement is invalid and unenforceable. Plaintiff opposes Defendant’s application and distinguishes the instant case from Matisoff, supra. Plaintiff argues that the agreement in Matisoff lacked any acknowledgment. Plaintiff points out that, in the instant case, not only is the parties’ Agreement acknowledged, but both Plaintiff and Defendant admitted that the signatures were genuine, that they were both present before the notary public when the instrument was signed and acknowledged and that it was signed before the effective date, the date of the solemnization of the marriage. Based on the testimony and evidence presented, it is undisputed that the Agreement was signed and acknowledged between the dates of May 1, 2012 and before the effective date, the date of the solemnization of the marriage. Although the Notary Public failed to include the date on the Certificates of Acknowledgement, the Court finds that the Acknowledgements are in substantial compliance with the uniform form. The failure to include the specific date in May 2012 is not, in and of itself, a basis to set aside the parties’ agreement. See Weinstein v. Weinstein, 36 A.D.3d 797, 830 N.Y.S.2d 179 (2d Dpt. 2007). As such, Defendant’s application for summary judgment based on the acknowledgements being defective is DENIED. III. STATUTE OF LIMITATIONS In his Post-Trial1 Memorandum, Plaintiff alleges that Defendant is time-barred from challenging the validity of the parties’ Prenuptial Agreement. This matter was commenced in 2019 and Defendant’s Answer and Counterclaim were filed in 2020. The Court finds that Defendant is not time barred from challenging the validity of the Prenuptial Agreement as the basis of Defendant’s challenge arises from, and directly relates to, Plaintiff’s claim that the Prenuptial Agreement precludes equitable distribution of certain assets. See Bloomfield v. Bloomfield, 97 N.Y.2d 188, 738 N.Y.S.2d 650 (2001). See also Brody v. Brody, 20 Misc. 3d 350, 862 N.Y.S.2d 738 (Sup. Ct. 2008), aff’d, 62 A.D.3d 928, 879 N.Y.S.2d 337 (2009). See also CPLR 203(d) and DRL 250(2). As such, Plaintiff’s defense based on the statute of limitations fails. IV. HEARING The Hearing in this matter commenced on August 29, 2022 and continued for the following non-consecutive days, namely August 30, August 31, September 1, November 7, November 29, 2022 and on January 12, 2023 and February 27, 2023 on the limited issue of Defendant Wife’s Second Counterclaim set forth in the Defendant’s Verified Answer and Counterclaims dated March 9, 2020. Rather than recount every aspect of the Hearing, this Court discusses herein only those significant and consequential findings that were considered and carefully weighed in reaching its determination. A. PRENUPTIAL AGREEMENT This Court has carefully reviewed the parties’ Prenuptial Agreement. On its face, the Agreement unequivocally describes the intent of the document as: …to limit [Defendant's] rights with respect to equitable distribution of [Plaintiff's] separate property, to wit: his presently-owned realty, business interests, vehicles and financial accounts and holdings, as more particularly identified in Schedule A… Schedule A includes a list of property owned by Plaintiff prior to the parties’ marriage. More specifically, the Agreement lists the present aggregate value of the property identified on Schedule A as One Million Dollars ($1,000,000.00). Schedule B lists Defendant’s property owned prior to the marriage as “[a]ll cash, bank, financial accounts and investments presently held in the name of Laura Horton or Laura Gagilano.” As to Plaintiff’s property, the Agreement states that: Mr. Block is retaining all of his interest and other rights in his separate property, real and personal, as set forth in Schedule A, including Timber Landscaping & Design, Inc. and Timber investment Properties LLC and all assets held in the name(s) of said business entities and the successors and assigns thereof (if any), as well as all postmarital appreciation thereof, accretions, income, return of capital, dividends and distributions therefrom, as his “separate property”, as “separate property” is defined by the terms of NY Domestic Relations Law § 236(B) or shall be defined by any subsequent statute which may be enacted in its place.” The Agreement states as follows: It is understood and agreed that Ms. Horton shall have the right to remain at the premises, 409 Sweezy Road, Riverhead, New York for a period of 6 months or the duration of the current school year whichever may be longer at no cost “rent free,” to provide sufficient time for her to relocate and that with respect to any continued occupancy thereafter she will be responsible for payment of reasonable rent and associated utilities, excluding real estate taxes and garage utilities. Duly executed prenuptial agreements are accorded the same presumption of legality as any other contract. Bloomfield v. Bloomfield, supra. There is a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements. Id. However, because of the fiduciary relationship between spouses, agreements between spouses are closely scrutinized by the courts, and such agreements are more readily set aside in equity under circumstances that would be insufficient to nullify an ordinary contract. See Smith v. Smith, 129 A.D.3d 934, 11 N.Y.S.3d 655 (2d Dept. 2015) and Petracca v. Petracca, 101 A.D.3d 695, 956 N.Y.S.2d 77 (2d Dept. 2012) Despite the presumption of validity, an agreement between prospective spouses can be set aside where it is shown to be the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct. Smith v. Smith, supra, citing to Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817 (1977). “To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the [agreement] is manifestly unfair to a spouse because of the other’s overreaching” Id. The Courts have held that, in determining whether an agreement between spouses is invalid, “courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution”. Christian v. Christian, supra. It has been held that “a spouse seeking to set aside a postnuptial agreement initially bears the burden to establish a fact-based, particularized inequality.” Petracca v. Petracca, 101 A.D.3d 695, 956 N.Y.S.2d 77 (2d Dept. 2012) citing to Matter of Greiff, 92 N.Y.2d at 343, 680 N.Y.S.2d 894, (1989) Where this initial burden is satisfied, a proponent of a postnuptial agreement suffers the shift in burden to disprove fraud or overreaching”. Marinakis v. Marinakis, 196 A.D.3d 472, 147 N.Y.S.3d 416 (2d Dept. 2021) Courts have specifically applied Christian’s manifest unfairness standard to prenuptial agreements recognizing the nature of this special relationship. See Smith v. Smith, 129 A.D.3d 934, 11 N.Y.S.3d 655 (2d Dept. 2015); Lombardi v. Lombardi, 127 A.D.3d 1038, 7 N.Y.S.3d 447 (2d Dept.2015) and Bibeau v. Sudick, 122 A.D.3d 652, 996 N.Y.S.2d 635 (2d Dept.2014). See also Gottlieb v. Gottlieb, 138 A.D.3d 30, 25 N.Y.S.3d 90 (1st Dept. 2016) In order for the burden to shift, the spouse contesting a prenuptial agreement must establish “a fact-based, particularized inequality,” In re Barabash, 84 A.D.3d 1363, 924 N.Y.S.2d 544 (2d Dept. 2011) and that the “premarital relationship between the contracting individuals manifested ‘probable’ undue and unfair advantage” Gottlieb v. Gottlieb, supra, citing to Matter of Greiff, supra. The Court in Grieff stated that: “Whenever the relations between the contracting parties appear to be of such a character as to render it certain that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.” Greiff, 92 NY2d at 345. This Court points out that several courts have analyzed the Greiff burden-shifting in terms of the validity of spousal agreements wherein the right of election is waived. The Courts have held that, in those instances, the following non-exclusive factors are to be considered: detrimental reliance on the part of the poorer spouse; relative financial positions of the parties; the formality of the execution ceremony itself; full disclosure of assets as a prerequisite to a knowing waiver; the physical or mental condition of the objecting spouse at the time of execution; superior knowledge/ability and overmastering influence on the part of the proponent of the agreement; the presence of separate, independent counsel for each party; the circumstances in which the agreement was proposed and whether it is fair and reasonable on its face; and a provision for the poorer spouse in the will. See Estate of Buzen, 1999 NYLJ LEXIS 913, NYLJ, Apr. 2, 1999 (Sur. Ct. Nassau Co. 1999). See also In re Est. of Rappaport, 184 Misc. 2d 660, 662, 709 N.Y.S.2d 921, 922 (Sur. 2000) and In re Kazuba, 9 Misc. 3d 1116(A), 808 N.Y.S.2d 918 (Sur. 2005). Although the issue before this Court is not the waiver of election under EPTL 5-1.1-A, the Court finds these factors instructive in determining the validity of the parties’ Prenuptial Agreement in the instant matter. 1. Overreaching Defendant’s Second Counterclaim seeks to set aside the Prenuptial Agreement claiming the Agreement was manifestly unfair as same is the product of overreaching. In support of the overreaching argument, it is alleged that Defendant was compelled to execute the agreement during the same month that the parties were to marry and that Plaintiff would not marry Defendant unless she signed the Agreement. Further, it is alleged that the Agreement was prepared by Plaintiff’s attorney to benefit Plaintiff. Defendant goes on to allege that she was pressured to sign the Agreement because, as a religious catholic, the tenants of her faith required her to be married and not to raise the parties’ child out of wedlock. She claims that this information was known to Plaintiff at the time he presented her with the Agreement. Defendant alleged that Plaintiff used his knowledge of Defendant’s religious beliefs to his economic advantage by refusing to marry Defendant unless she signed the Prenuptial Agreement, thereby, imposing an undue influence on her decision. Defendant alleges that but-for the Defendant’s religious obligation to be married, and the fact that the wedding was set to take place in the same month that she was presented with the Agreement, she would not have felt pressured to enter into an Agreement that was unfair and one-sided at the time that it was signed. During the Hearing, Defendant testified that she trusted Plaintiff at the time the Prenuptial Agreement was provided to her and did not think that he would take advantage of her. She testified that it was not until April, 2012, that Plaintiff mentioned he wanted a prenuptial agreement. She testified that she did not receive a draft of the Prenuptial Agreement until May 3, 2012 — two (2) weeks before the planned wedding and three (3) weeks before the planned wedding ceremony in the Dominican Republic. Defendant argues that the short time between the date she received the Prenuptial Agreement and the date of wedding contributed to her pressure to sign the agreement. In addition, Defendant asserts that she was also pressured to enter into this agreement insofar as Plaintiff would not marry Defendant unless she signed the Agreement that Plaintiff’s attorney prepared to benefit Plaintiff. Defendant also testified that there were other contributing factors to the pressure that she was feeling to sign the Agreement. The parties were engaged in 2010 and, at the time of the engagement, the parties were residing together for approximately one (1) year. She testified that leading up to the wedding, she had worn an expensive engagement ring daily for the world to see and told her friends, family (including her son Andrew) and co-workers that she was getting married. She also testified that despite her religious faith, the parties were open to a pregnancy out-of-wedlock because they were getting married and looking to buy a house. In that regard, the parties conceived a child during their engagement that was born on October 7, 2011. Defendant testified that their daughter Aris was given Plaintiff’s last name with the understanding they were getting married, and Aris would be raised by married parents. She further testified that she planned an expensive wedding ceremony in the Dominican Republic, obtained a passport for Aris; and spent her approximate $3,500.00 tax refund on things for the wedding ceremony, including a dress, clothes for Aris and Andrew, the photographers, and the meal plan at the hotel. a. Lack of Counsel Defendant argues that Plaintiff made no effort to ensure that the Defendant was represented by counsel even though she was marginally employed while staying home to care for Aris, not even discussing it with her after he gave the Agreement. Defendant testified during the Hearing that she wanted an attorney but could not afford one, and even after reading the Prenuptial Agreement she did not understand the rights she may have been giving up in the Agreement. Plaintiff argues that Defendant understood the Agreement as she negotiated segments of the Agreement on her own before either party executed the Agreement. Plaintiff goes on to argue that Defendant never asked Plaintiff for money to hire an attorney, did not reach out to any attorneys, did not ask for more time to secure an attorney and, instead, proceeded to sign the agreement before a notary without having consulted an attorney. However, Plaintiff does not dispute that Defendant was not represented by Counsel. In fact, Plaintiff’s Verified Reply to Counterclaim admits Paragraph 19 of the Defendant’s Second Counterclaim: The Agreement further inaccurately states that both parties “have been duly apprised of their respective legal rights” and that “All of the provisions hereof, as well as all questions pertaining thereto, have been fully and satisfactorily explained to them.” Defendant did not have the benefit of counsel apprising her of her legal rights and similarly, did not have independent legal counsel to answer any questions and/or to explain the Agreement to her. In addition to this admission in his pleading, Plaintiff acknowledged and affirmed this admission during the Hearing. As such, this Court will consider the fact that Defendant did not have the benefit of counsel apprising her of her legal rights and similarly, did not have independent legal counsel to answer any questions and/or to explain the Agreement to her. Plaintiff argues that Defendant’s failure to be represented by Counsel is not enough to set aside the parties’ prenuptial agreement. Plaintiff cites to Forsberg v. Forsberg 219 A.D.2d 615, 631 N.Y.S.2d 709 (2d Dept.1989) and Brassey v. Brassey, 154 A.D.2d 293, 546 N.Y.S.2d 370 (1st Dept. 1989) to support his position that lack of representation by counsel, without more, does not support a conclusion of overreaching. This Court agrees that the absence of counsel in negotiation or reviewing a prenuptial agreement, without more, does not support a conclusion of overreaching. However, in reading those cases, it is clear the failure of a party to be represented by counsel is a factor to consider in determining the validity of an agreement. Further, any allegation that the unrepresented party did not comprehend the agreement and/or there was a failure to disclose certain assets should also be considered. Defendant in this action is alleging both. b. Failure to Disclose Value of Assets Plaintiff points out that Defendant argues that she was not made aware of the value of Plaintiff’s assets. However, Plaintiff points to Schedule A which identifies Plaintiff’s assets. Plaintiff argues that Defendant offered no proof that the value of the assets were misstated, or what the actual value of the assets were at the time of signing, or Hearing. Plaintiff further contends that Defendant failed to meet her burden of showing that that the consequence of non-disclosure was of the magnitude that had it been disclosed, she would not have executed the agreement. Lastly, Plaintiff points out that Defendant testified that she was familiar with the nature and extent of Plaintiff’s property. The Court has reviewed Schedule A and notes that it identifies Plaintiff’s assets but does not disclose the specific value of his businesses. Further, it appears that not all of Plaintiff’s assets were listed on Schedule A. During the Hearing, Plaintiff admits that he also owned a timeshare in Mexico at the time of the signing, but it was not listed on Schedule A. In addition, at the time of the signing of the agreement, he testified that there existed an account for Timber Investment properties and the amount was not included on Schedule A. 2. Manifest Unfairness Defendant argues that because of the overreaching, the terms of the Prenuptial Agreement are manifestly unfair resulting in probable undue and unfair advantage. A review of the terms of the Agreement reveals that the Agreement does call for an expansive definition of separate property beyond what DRL 236 defines. Under the Agreement, all of Plaintiff’s separate property acquired prior to the marriage remains separate property. Plaintiff concedes that the Prenuptial Agreement states that any separate property identified in Schedule A shall remain his. Schedule A includes the business and properties: Timber Landscaping and Design, Timber Investment Properties, 409 Sweezy Avenue, Riverhead, 383 Hampton Avenue, Riverhead, and 360 Hamilton Avenue, Riverhead (rental property). In the agreement, Plaintiff identified that all of his assets were worth more than One Million Dollars ($1,000,000.00). The Prenuptial Agreement also contains a Schedule B listing Defendant’s property. The Agreement, however, does not provide for Plaintiffs waiver of any of Defendant’s property listed in Schedule B. The Agreement allows for the equitable distribution of marital assets that were created on the part of Defendant. In fact, Plaintiff agrees that the Agreement contains no waiver of his rights to her property and states that he is affirmatively seeking equitable distribution of all property she acquired during the marriage. Under the Agreement, Plaintiffs separate property also includes all income earned by Plaintiff’s separate property business during the marriage. The Agreement declares his separate property, including his income from separate property to be free of “any claim that may be made by reason of the marriage.” Interestingly, the Agreement also states that it is “not intended to provide for the disposition of maintenance.” However, in calculating maintenance under NY State law, the parties’ income is to be considered. Plaintiff testified during the Hearing that his only source of income is from his separate property business. As such, based on the terms of the Prenuptial Agreement, this income would not be considered for maintenance purposes. In addition, the Agreement provides that Defendant is required to leave the 409 Sweezy Road, Riverhead residence, in the event either party commenced any matrimonial action, whether for divorce or separation or commenced a Family Court petition against the other. Pursuant to the terms of the Agreement, Defendant would be indebted to Plaintiff for residing in the marital residence with their child for any period after his filing of this matrimonial action, regardless of whether she is the party who commenced the action and regardless of whether Plaintiff continues to reside in the home. In the first instance, this Court finds that at the time the Prenuptial Agreement was entered into, the parties had a special relationship as they were engaged, had been living together for at least two (2) years, had a child together and were planning a wedding in Dominican Republic. Thus, this Court finds that the parties’ relationship was “permeated with trust, confidence, honesty and reliance” See Greiff, 92 N.Y.2d at 347, 680 N.Y.S.2d 894. As such, Defendant has the initial burden of showing a fact-based particularized inequality. In evaluating the aforementioned non-exclusive factors against the facts presented at the Hearing, this Court finds that Defendant relied upon Plaintiff at the time of execution of the agreement. By the time that Plaintiff approached Defendant with the Prenuptial Agreement, she was engaged and cohabitating with Plaintiff in his separate property home with their young child and relied upon him for her day-to-day living and for the care of their child as she was not employed. Plaintiff provided the Prenuptial Agreement to Defendant only two (2) weeks prior to the marriage ceremony, at which time plans had already been made for wedding ceremony in Dominican Republic. Defendant relied upon Plaintiff for most of the funds to plan the wedding and secure a venue for the wedding ceremony. Defendant testified that she did not understand the entirety of the Prenuptial Agreement, she could not afford Counsel and therefore, did not have the benefit of counsel in negotiating or reviewing the Prenuptial Agreement. She further testified that Plaintiff threatened not to marry her if she did not sign the Agreement. That testimony was not refuted by Plaintiff. The Court finds that Defendant did not have the benefit of counsel apprising her of her legal rights and similarly, did not have independent legal counsel to answer any questions and/or to explain the Agreement to her. Although, the absence of counsel alone is insufficient to invalidate an agreement, this Court finds it to be a relevant factor in analyzing the totality of the circumstances surrounding Defendant entering into the prenuptial agreement. At the time of execution, Plaintiff and Defendant did not own any property together and they do not have any joint accounts together. There was a great disparity in the parties’ income at the time of execution. Defendant was not employed at the time of the execution of the agreement and had limited assets. Plaintiff, on the other hand, was a successful businessman who, at the time of the execution of the agreement, owned various business entities and property listed as valuing more than One Million Dollars ($1,000,000.00). Plaintiff admits that he also owned a timeshare in Mexico, and an account for Timber Investment properties that were not included on Schedule A. The Court finds that Plaintiff failed to disclose all his assets. Further, the terms of the Agreement essentially waived all of Defendant’s current and future interest in Plaintiff’s separate property delineated in Schedule A. The Agreement expands the definition of “separate property” and precludes Defendant from claiming any interest in income derived from any of his separate property income. It also creates an obligation on Defendant to vacate the parties’ marital residence within a short period of time after either party commences a matrimonial action or be indebted to Plaintiff for the payment of rent. Lastly, the agreement does not curtail, waive or limit any interest that Plaintiff would have in Defendant’s limited assets. As a result of the testimony and evidence presented at Hearing, the Court finds that based on the character of and the circumstances surrounding the parties’ relationship at the time of the execution of the agreement, Plaintiff had a probable undue and unfair advantage over Defendant. See A.A. v. B.B., 61 Misc. 3d 1223(A), 111 N.Y.S.3d 803 (N.Y. Sup. Ct. 2018) Although any of the above factors standing alone may not support inequality of the agreement on its face, this Court finds that an analysis of all the above-listed factors and circumstances support a showing of an inequality of the Prenuptial Agreement at the time of the making of the Agreement. In evaluating the terms of the parties’ Prenuptial Agreement as well as the surrounding circumstances surrounding the execution, the Court finds that the Prenuptial Agreement is so manifestly unfair as to Defendant that it warrants equity’s intervention. As such, Defendant has met her initial burden of showing a fact-based particularized inequality, raising the inference of overreaching on the part of Plaintiff. The Court further finds that Plaintiff failed to persuade the Court that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood by Defendant when signing the Prenuptial Agreement. Since Plaintiff has failed to affirmatively overcome the inference that the parties’ Prenuptial Agreement was the result of overreaching on the part of Plaintiff, the Court grants Defendant’s Second Counterclaim and sets aside the parties’ Prenuptial Agreement in its entirety. 3. Unconscionability Defendant further argues, and alleges in her Second Counterclaim, that should this Court fail to find overreaching on the part of Plaintiff, the Agreement should be set aside as it is unconscionable. Notwithstanding the Court’s decision to set aside the agreement based on manifest unfairness and overreaching, supra, the Court will also analyze Defendant’s arguments surrounding unconscionability. The Court finds Defendant’s analysis of her rights and obligations under the Agreement at the time of this proceeding to be accurate, insofar as the Prenuptial Agreement would allow Plaintiff to keep all of his property, inclusive of what he owned before the marriage, what he acquired during the marriage, and any appreciation therefrom. Defendant would receive no interest in the appreciation of the marital residence where the parties resided before and during the marriage, and where Defendant served as the primary caretaker raising their child. Defendant would have no interest in any real property or businesses as the parties accumulated no marital property throughout their marriage according to the terms of the Agreement. The properties acquired from his separate property income during the marriage would remain Plaintiff’s separate property, and Defendant would have no interest in same. More specifically, 128 Prospect Place, Riverhead which was acquired during the marriage in 2014, would remain his separate property. In addition, Timber Gardens, LLC which was established in 2015 during the marriage so that the 839 Union Avenue, Aquebogue could be purchased, would remain Plaintiff’s separate property. He testified that the money utilized to acquire the Union Avenue property and the Prospect place property came from his separate property Timber Landscaping and Design. Furthermore, he testified that he acquired 40 West Lane, Aquebogue in February of 2022 after subleasing the property for a period. Although Plaintiff testified that Defendant would be entitled to spousal maintenance under the Prenuptial Agreement, he conceded that Defendant would not be entitled to maintenance based on the income generated from Timber Landscaping and Design as that income is designated as “separate property”. He went on to testify that his separate property business Timber Landscaping and Design was, and continues to be, his primary source of income. As such, this Court finds that based on the terms of the Prenuptial Agreement, Defendant would receive no maintenance award as Plaintiffs only income is derived from his separate property assets. Under the terms of the Prenuptial Agreement, Plaintiff would be entitled to a presumptive half of Defendant’s nominal assets of $1,422.92, which she testified is the value of her savings and checking account at the time of commencement, to which Plaintiff is asserting a claim. Lastly, Defendant would owe Plaintiff reasonable rent for the period from October 2019 (the first full month after the child returned to school following the commencement of the action for divorce) through October 2022, a period of two (2) years and ten (10) months, which Plaintiff asserts to be $100,800.00. Having scrutinized the terms of the parties’ Prenuptial Agreement and the surrounding facts and circumstances as presented at the time of the Hearing, this Court finds that the parties’ Prenuptial Agreement is unconscionable as applied to the parties at the time of this matrimonial action. Therefore, this Court grants Defendant’s Second Counterclaim based on unconscionability and sets aside the Prenuptial Agreement in its entirety. The foregoing constitutes the Decision and Order of this Court. Dated: May 9, 2024
