J.M. v. G.V.

The following e-filed papers read herein: NYSCEF Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed   17-32 Opposing Affidavits (Affirmations)  34-42 Reply Affidavits (Affirmations)          43-46 DECISION & ORDER Upon the foregoing paper in this divorce action defendant moves by order to show cause seeking the following relief [NYSCEF #32]: a) “Directing the entry of judgment in favor of the Defendant’s counterclaims to set aside the Pre-Nuptial Agreement dated May 16th, 2018 upon the ground that the Plaintiff, [REDACTED], has failed to timely appear, answer, respond, plead, or move with respect to the properly served Verified Answer with Counterclaims; and/or b) Pursuant to CPLR Section 3017 declaring that the Pre-Nuptial Agreement dated May 16th, 2018 is hereby null and void; c) Pursuant to CPLR Section 3212 awarding summary judgment in favor of the Defendant to set aside the Pre-Nuptial Agreement dated May 16th, 2018 on the basis that said agreement is unconscionable, fraudulent and/or the result of overreaching; d) Awarding Defendant counsel fees in the amount of Twenty-Five Thousand Dollars ($25,000.00); and/or e) Granting the Defendant [REDACTED] such other and further relief as this Court may deem just and proper.” Plaintiff filed an opposition on February 26, 2024. Defendant filed a reply on March 11, 2024. The court heard oral argument on July 16, 2024. The oral argument was held in abeyance for an extended period of time at counsels’ request while they engaged in mediation. PROCEDURAL HISTORY The parties married in New York on May 23, 2018. The marriage is of relatively short duration. The parties have one unemancipated child, A.V. (D.O.B.: 9/2020). The plaintiff-wife commenced this matrimonial action, through counsel, with the filing of the Summons with Notice on May 1, 2023. [NYSCEF #1]. Defendant-husband, through counsel, filed a demand for Plaintiff’s Verified Complaint on May 8, 2023 [NYSCEF #2]. Approximately five (5) months later, plaintiff filed her Verified Complaint on October 12, 2023, seeking divorce on the ground of irretrievable breakdown of the relationship for a period of at least six months, pursuant to Domestic Relations Law Section 170(7) [NYSCEF #6]. Defendant filed his Verified Answer and Counterclaim on October 24, 2023 seeking, inter alia, that the “parties purported prenuptial agreement dated May 16, 2018 to be set aside in its entirety.” [NYSCEF #8]. To date, plaintiff has not filed a reply to defendant’s counterclaims. A preliminary conference was held on December 5, 2023, where the Court directed that any challenge to the prenuptial agreement dated May 16, 2018, shall be made by the defendant by order to show cause on or before January 22, 2024, with memorandum of law. This Court appointed Ms. Sharyn Duncan, Esq. as attorney for the child on July 30, 2024 [NYSCEF # 49]. Plaintiff’s failure to reply to defendant’s counterclaim Defendant’s counsel contends that defendant’s counterclaim to set aside the parties’ prenuptial agreement should be granted as a matter of law because the plaintiff failed to file a verified reply to the counterclaim. Defendant maintains that plaintiff’s time to file a reply to his counterclaim was November 13, 2023, and to date plaintiff has failed to file and serve any reply to his counterclaim. Defendant argues that plaintiff has made no effort to establish grounds to vacate the default, i.e., a reasonable excuse for the default. As such, defendant contends that due to plaintiff’s failure to file a reply to his counterclaim within the timeframe required by law, defendant’s counterclaims to set aside the prenuptial agreement should be granted as a matter of law. Plaintiff argues that the defendant is seeking a default judgment on a procedural technicality more commonly used in civil litigation and that she would suffer substantial prejudice if the prenuptial agreement was declared null and void on a procedural technicality. Plaintiff maintains that the action should be decided on its merit especially given that the underlying issue is whether the prenuptial agreement executed by the parties herein is unconscionable, overreaching or not valid on the basis that the defendant voluntarily executed the agreement without the assistance of counsel. Prenuptial agreement Defendant’s contentions Defendant avers that on May 16, 2018, approximately seven (7) days prior to the parties’ scheduled wedding he executed a prenuptial agreement at the office of plaintiff’s prior attorney1. Defendant argues that at the time the prenuptial agreement was executed he was not represented by counsel. He asserts that he had no input in the drafting and negotiation of the prenuptial agreement and that plaintiff allegedly “assured [him] that the purpose of the prenuptial agreement was only to protect any assets that each of us owned as of the date of our marriage which included Plaintiff’s ownership interest in her mother’s business.” [NYSCEF #18, p. 4]. Defendant asserts that plaintiff informed him that if he wanted to marry her it was required by her family that he signed a prenuptial agreement. In support of his position, defendant submitted a text conversation between him and plaintiff where defendant states that “if your family is the reason for the prenup, they should pay for it.” [Defendant's Exhibit A; NYSCEF #46]. Defendant contends that he later learned that pursuant to the terms of the prenuptial agreement he “relinquished [his] rights to any and all property acquired by Plaintiff during the marriage, even if said property was acquired with our martial income, as long as it was titled solely in Plaintiff’s name.” [NYSCEF #18, p. 4]. He argues that “[plaintiff's prior counsel] intentionally bolded certain terms in the agreement to make [him] believe that the only assets protected were those acquired by [the parties] prior to the marriage or property acquired in exchange of that separate property.” Id. Defendant argues that if the prenuptial agreement is upheld, he will be deprived of equitable distribution of numerous properties purchased during the marriage, but titled only in plaintiff’s name, including properties located at: xxxx 19th Avenue, Brooklyn, New York; and xxxx Navaho Lane, Lake Ariel, Pennsylvania. Defendant avers that he was involved in every aspect of the purchase of the two properties, which plaintiff allegedly routinely referred to as “our property”. Additionally, defendant maintains that if the prenuptial agreement is upheld, he will be left with little to no assets or income and no means to support himself. Defendant argues that the terms of the prenuptial agreement waives any and all rights he may have to seek maintenance from the plaintiff but, he contends, he was unaware of what he was waiving because plaintiff failed to disclose the parties’ respective incomes and earning capacities, as well as the maintenance amount he would have been entitled to in accordance with the post-divorce maintenance guidelines contained in Domestic Relation Law 236. Defendant contends that at the time the parties entered into the prenuptial agreement he had a net worth of $27,000, while plaintiff had a net worth of over $455,000. [T.7/16/2024, p.3, 19-21]. Defendant maintains that after the parties married, he largely gave up developing his career as a photographer to care for the parties’ young child and to allow for plaintiff to pursue her career as a pharmacist. As a self-employed photographer, defendant claims he earned approximately $30,000.00 in 2022. In contrast, he avers that plaintiff-wife is employed by NYU and he recently learned that she earned in excess of $150,000.00 in 2022. He also alleges that plaintiff lives rent free2 in an apartment owned by her parents and earns rental income from two income producing property, that he alleges she fails to properly report. Plaintiff contends that contrary to Defendant’s representations he did not give up his career to care for the parties’ child, A.V., and that a review of defendant’s income would show that historically the defendant only ever had nominal earnings from his photography business so there was no substantial decrease in his earnings associated with childcare responsibilities. Plaintiff alleges that during the marriage the parties were largely supported by her income as a pharmacist and defendant’s photography business was more of, in effect, a hobby rather than an income producing source. Defendant argues that the terms of the prenuptial agreement infer overreaching in its execution and unfairness to the defendant. Defendant maintains that had he understood the terms of the agreement he was signing he would have reviewed the agreement with an attorney instead of solely relying on plaintiff’s representations. During oral argument Defendant’s counsel contends that although plaintiff’s prior attorney may have explained to the plaintiff that both parties should have counsel, plaintiff never relayed this information to the defendant [T.7/16/2024, p.4, 8-12]. Defendant’s counsel maintains that plaintiff’s prior counsel had the intake, discussions about the terms of the prenuptial agreement, discussions relating to changes and revisions to be made to the terms of the prenuptial agreement with plaintiff alone and without ever including the defendant in these discussions. Defendant avers that he was first provided an opportunity to review the agreement for the first and only time at plaintiff’s prior counsel’s office after plaintiff reviewed the initial draft and made changes and revisions to the agreement. Defendant contends that “any attorney would have likely advised [him] that the terms were manifestly unfair and one-sided”, because it permits the plaintiff to “walk away with multiple properties and assets that we acquired during our marriage with martial income.” [NYSCEF #18, p. 6]. Defendant argues that if the court permits the plaintiff to enforce the prenuptial agreement the only assets, he will leave the marriage with only his photography business, which he alleges has no value, and the minimal funds in his checking account, while plaintiff will be permitted to walk away with assets in excess of $1,000,000.00 many of which were acquired during the marriage. Plaintiff’s Opposition Plaintiff contends that the prenuptial agreement is neither unfair nor unconscionable. She argues that defendant is now attempting to backtrack and get out of a legally binding contract. Plaintiff asserts that she retained her prior counsel on or about April 19, 2018, to represent her in the drafting of the parties’ prenuptial agreement. Plaintiff avers that she informed defendant that her prior counsel informed her that both parties should have independent counsel to review the prenuptial agreement. Plaintiff asserts that defendant “indicated to me that he would review the agreement himself because he did not want to spend money on a lawyer and if he needed legal assistance after reviewing the agreement, he would find someone” [NYSCEF #35, p. 3]. In defendant’s reply affirmation dated March 10, 2024, he denies that he stated that he did not want an attorney to represent him. He asserts that although he was told that he “could” hire a second attorney to review the agreement, it was allegedly presented to him as “unnecessary” [NYSCEF #43, p. 4]. Plaintiff states that on May 9, 2018, the parties had a scheduled phone call with her prior counsel where they reviewed a draft of the prenuptial agreement that her prior counsel emailed to plaintiff on May 8, 2018. Plaintiff asserts that defendant allegedly did not have any comments or revisions after reviewing the draft of the prenuptial agreement. Plaintiff avers that on May 16, 2018, both parties met at her prior counsel’s office, where they individually reviewed the prenuptial agreement, initialed the bottom of each page to indicate that they reviewed the entire agreement. She states that after the parties executed the agreement her prior counsel, notarized both of their signature. Plaintiff asserts that she did not threaten to call off the wedding if defendant did not sign the prenuptial agreement, in fact, she alleges that had the parties not reach an agreement she was willing to execute the terms as a postnuptial agreement. Defendant denies being offered a postnuptial agreement as an option. Plaintiff further denies making any representations to the defendant regarding the terms of the prenuptial agreement or what its intent was and alleges that she encouraged the defendant to retain his own attorney. Plaintiff contends that the prenuptial agreement clearly lay out in “easy-to-understand” language the terms pertaining to separate and martial property. Additionally, plaintiff affirms that defendant was aware of her financial circumstances and earnings and did not request a further inquiry. She asserts that both parties provided financial disclosures which were incorporated into the prenuptial agreement. Defendant claims that although he was aware that plaintiff earned more than him at the time of their marriage, he “had absolutely no knowledge as to what she actually earned and neither Plaintiff nor her attorney can point to anywhere in that agreement where Plaintiff’s actual income was disclosed.” [NYSCEF #43, p. 5]. As such defendant contends that without knowledge of the parties’ respective income, he was unable to make an intelligent and knowing waiver of how much maintenance he was entitled to. Counsel fees Defendant is requesting that plaintiff pay $25,000.00 in interim counsel fees. He states that he paid his attorneys $10,000.00 as an initial retainer and have “minimal liquid funds at [his] disposal to pay [his] attorneys.” [NYSCEF #18, p. 7]. Defendant’s counsel asserts that the initial retainer of $10,000.00 has been completely exhausted. Defendant’s counsel avers that this matter is anticipated to be a highly litigated matter inasmuch as the issues of custody and setting aside the prenuptial agreement are not resolved. Defendant avers that although he is self-employed as a photographer, during the COVID-19 pandemic his business suffered greatly and once the parties’ child was born in 2020 the parties made the decision that the defendant would be the child’s primary caretaker while the plaintiff work full-time. Defendant maintains he has extremely limited assets and income while plaintiff has multiple income generating properties and receives financial assistance from her family, which should be imputed to plaintiff for purposes of determining income. Defendant alleges that plaintiff’s property in Brooklyn has two (2) units that allegedly have a rent roll of $2,100.00-$2,300.00 per month each and another property in New Jersey that has a rent roll of $2,000.00 per month. Defendant’s counsel maintains that the plaintiff-wife is the monied spouse in this matter and has the financial advantage in this litigation. Defendant argues that based upon the disparity of the parties’ income and earning capacities counsel fees should be awarded to defendant or plaintiff will have an unfair advantage in this litigation. Plaintiff affirms that she retained her prior counsel on March 12, 2023, to represent her in this divorce action. She paid a $6,000.00 retainer and has paid a total of $11,000.00 in legal fees to date. Plaintiff avers that during the COVID-19 pandemic she was “an essential worker” but that defendant was “far from a stay-at-home parent” and that during the pandemic defendant stayed at home from work not because of childcare needs but because he found an excuse not to work. Plaintiff contends that defendant was always able to work as a photographer because she would cover all weekends and take vacation days as needed to stay home so that defendant would have the opportunity to work if needed. She also asserts that her parents and defendant’s mother would provide childcare almost every day during the work week. Defendant maintains that he has taken care of the child every day since she was born and continues to do so to this day. Plaintiff denies earning income generated from the Brooklyn and New Jersey properties referenced in defendant’s affidavit. Plaintiff affirms that she “co-own[s] the properties with her sister and “the entirety of the rental income goes to pay the outstanding mortgage and [she] do[es] not earn a profit” [NYSCEF #35, p. 6]. Plaintiff requests that that the court consider the protracted litigation which, she contends, has been caused solely by the defendant’s stubbornness and unwillingness to co-parent and negotiate. Plaintiff argues that due to the defendant’s lack of reasonableness on the custody settlement, “we are on the cusp of the appointment of an attorney for the child3 and potentially a forensic evaluation which I will bear most of the expenses on.” Defendant contends that plaintiff and her family are the ones creating a hostile environment because he refuses to give into her non-negotiable stance of a 50/50 custody arrangement. DISCUSSION Default Judgment The general rule is that in order to successfully oppose a motion for leave to enter a default judgment based upon failure to timely serve a reply to defendant’s counterclaims, the plaintiff is required to demonstrate a reasonable excuse for the delay and a potentially meritorious defense (see Timmerman v. Gentile, 224 AD3d 862 [2d Dept 2024]; Maurice v. Maurice, 78 AD3d 792, 793 [2d Dept 2010]; MMG Design, Inc. v. Melnick, 35 AD3d 823 [2d Dept 2006]). This general rule is not applied with equal rigor in matrimonial actions where the courts of this state have adopted a liberal policy toward vacating defaults in matrimonial actions (see Genzone v. Genzone, 146 AD3d 752, 753 [2d Dept 2017]; Anekwe v. Okoroafor, 121 AD3d 930, 930 [2d Dept 2014]; Goldenberg v. Goldenberg, 123 AD3d 761, 761 [2d Dept 2014]; Lueders v. Boma-Lueders, 85 AD3d 1130, 1131 [2d Dept 2011]; DePass v. DePass, 42 AD3d 723, 724 [3d Dept 2007]). In matrimonial actions, “[t]he State’s interest in the marital res and allied issues…favor[s] dispositions on the merits; (Payne v. Payne, 4 AD3d 512, 513 [2d Dept 2004] quoting Viner v. Viner, 291 AD2d 398, 398 [2d Dept 2002]; see Backhaus v. Backhaus, 128 AD3d 872, 873 [2d Dept 2015]; Carlin v. Carlin, 52 AD3d 559, 561 [2d Dept 2008];Osman v. Osman, 83 AD3d 1022, 1023 [2d Dept 2011]; Pierre v. Pierre, 298 AD2d 511, 512 [2d Dept 2002]; Adams v. Adams, 255 AD2d 535, 536 [2d Dept 1998]). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Fayet v. Fayet, 214 AD2d 534, 535 [2d Dept 1995]; see also Shea v. Miller, 159 AD3d 974, 975 [2d Dept 2018]; Ito v. Ito, 73 AD3d 983, 983 [2d Dept 2010]; see Adams v. Adams, 255 AD2d 535 [2d Dept 1998] [the court found that the appellant's excuse for her default at the inquest on the economic issues "somewhat questionable" but it was determined that the law-office failure of the appellant's former attorney should be excused]); see also Schorr v. Schorr, 213 AD2d 621 [2d Dept 1995] [The Appellate Division determined that the Supreme Court properly vacated the equitable distribution portion of the judgment of divorce. The court found that although the defendant's excuse for disrupting the trial and leaving the courtroom during the trial was tenuous, he presented a meritorious defense to the Supreme Court's distribution of the parties' marital assets]). In a matrimonial action when assessing the proffered excuse for default, the court should take into account “the procedural history and particular facts of the case” (Capurso v. Capurso, 134 AD3d 974, 976 [2d Dept 2015]; see Davis v. Davis, 219 AD3d 697, 699 [2d Dept 2023]).Whether a particular judgment should be opened remains a matter of discretion (see Wayasamin v. Wayasamin, 167 AD2d 460, 462 [2d Dept 1990] [Although the Appellate Division declined to interfere with the Supreme Court's exercise of discretion insofar as it concerns that portion of the judgment which awards the plaintiff a divorce. It determined that the "Supreme Court should have opened the economic provisions of the judgment of divorce and permitted the defendant to join issue with respect thereto, including interposition of whatever challenge to the 1987 agreement he deems advisable"]). Here, defendant timely filed his Verified Answer and Counterclaim on October 24, 2023. In pertinent part, CPLR §3011 provides that “[a]n answer may include a counterclaim against a plaintiff” and “[t]here shall be a reply to a counterclaim denominated as such”. CPLR §3012 (a) further provides that “[s]ervice of an answer or reply shall be made within twenty days after service of the pleading to which it responds”. It is undisputed that the plaintiff’s time to reply to the counterclaims expired with the plaintiff neither serving a reply nor requesting an extension of time within which to do so. Defendant moves for entry judgment by default in favor of his counterclaims to set aside the parties prenuptial agreement dated May 16, 2018. Defendant’s counsel in her Memorandum of Law, relies on Zheng v. Evans, 63 A.D.3d 791 [2d Dept. 2009] and Twersky v. Kasaks, 24 A.D.3d 657 [2d Dept. 2005] in support of her contentions that defendant’s counterclaims to set aside the prenuptial agreement should be granted as a matter of law due to plaintiff’s failure to reply to defendant’s counterclaims. The Court notes that the two cases relied upon by defendant were not matrimonial cases, and therefore were not awarded the liberal policy given towards matrimonial cases in vacating defaults. Additionally, the Court notes that unlike the instant matter the court in Zheng v. Evans found that the plaintiffs did not provide a reasonable excuse for their failure to timely serve a reply and a potentially meritorious defense. Additionally, in sharp contrast to the instant matter, after the plaintiff failed to reply to defendant’s counterclaims the court in Twersky v. Kasaks, directed that plaintiff serve a reply to defendant’s counterclaims within 30 days and plaintiff again failed to comply with that order. [The court in Twersky v. Kasaks, granted defendant's branch of the motion which was for leave to enter judgment upon the plaintiff's default in replying to the counterclaims contained in the answer, regarding liability only. However, the court determined that the third counterclaim cannot go forward unless there is a determination that the plaintiff is not entitled to specific performance, as an award of damages on the third counterclaim would be inconsistent with a finding that the plaintiff was entitled to specific performance. Accordingly, the court determined that the final determination of that counterclaim must await resolution of the plaintiff's cause of action for specific performance.] “Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Gately v. Drummond, 161 AD3d 947, 949 [2d Dept 2018], quoting Harcztark v. Dr. Variety, Inc., 21 AD3d 876, 877 [2d Dept 2005]). During oral argument on July 16, 2024, plaintiff’s counsel for the first time asserted that the failure to file a reply was due to “an unfortunate office oversight” [T.7/16/204, p.8, 21-22]. Plaintiff’s counsel contends that he did not file a late reply to defendant’s counterclaims because he is awaiting a decision from the Court on the instant motion. It does not appear that plaintiff’s default was willful, plaintiff has been actively litigating and mediating this matter, has appeared at all appearances and did not abandon her claims or defenses. In fact, it was represented at the preliminary conference, through counsel, that plaintiff intended on opposing defendant’s claim to set aside the prenuptial agreement and the Court set forth in the preliminary conference order dated December 5, 2023 [NYSCEF #15], that any challenge to the prenuptial agreement dated May 16, 2018 shall be made by the defendant by order to show cause on or before January 22, 2024, with memorandum of law, any opposition shall be filed by February 22, 20244 and any reply by March 7, 2024. The plaintiff timely opposed defendant’s summary judgment motion to vacate the parties’ prenuptial agreement. Further, the Court finds that there is no prejudice to the defendant. Thus, this Court finds that plaintiff presented a reasonable excuse for the default, and that it would be duplicative for the plaintiff to reply to the counterclaim because the Court at the preliminary conference set forth a mechanism to address the issues put forth in the counterclaim regarding the prenuptial agreement. Applying the liberal standard for vacating a default in matrimonial actions, under the circumstances of this case, the fact that the parties have a prenuptial agreement which the plaintiff is seeking to enforce this Court finds that the plaintiff has established a potential meritorious defense with regard to equitable distribution and maintenance as further delineated in this opinion (see Fine v. Fine, 12 AD3d 399, 400 [2d Dept 2004]). Considering the potentially meritorious claim, and the fact that there is public policy in favor of determining equitable distribution issues on the merits (see Viner v. Viner, 291 AD2d 398, 399 [2d Dept 2002]), the Court finds that granting defendant judgment to set aside a prenuptial agreement negotiated and consented to by the parties merely because the plaintiff failed to timely reply to defendant’s counterclaims would have longstanding and unintended repercussions and is thus denied. Furthermore, the Court recognizes that rather than merely opposing defendant’s order to show cause seeking default judgment on his counterclaim against plaintiff to vacate the parties’ prenuptial agreement, procedurally the plaintiff should have moved by cross-motion seeking relief under CPLR 3012 (d) for this court to extend the time for defendant to file a late reply to defendant’s counterclaim. Pursuant to CPLR 3012 (d): “Extension of time to appear or plead. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default” The purpose of making a formal cross motion application seeking relief in accordance with CPLR 2215, is to prevent a demand for affirmative relief intermingled in opposing papers from taking the moving party by surprise (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 61-62 [2d Dept 2013]; Plateis v. Flax, 54 AD2d 813, 814 [3d Dept 1976]). Courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215 (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 65 [2d Dept 2013]). This Court finds that this procedural error under the circumstance presented does not prejudice defendant. The court notes that the defendant had a full opportunity and took advantage of that opportunity to respond to plaintiff’s reasonable excuse and meritorious-defense arguments. Under the circumstances presented, where the issue in dispute has already been presented for judicial determination by way of motion, for the court to now require formal motion practice to file a late reply which would be in effect the same facts alleged in plaintiff’s affidavit in opposition would result in increased legal fees. Here, the Court found that the plaintiff successfully demonstrated that there was a reasonable excuse for her default and a potentially meritorious defense. Therefore, this Court exercises its discretion to treat plaintiff’s opposition as an application for relief under CPLR 2005 and CPLR 3012 (d), even absent a formal notice of cross-motion, for leave to file a late reply to defendant’s counterclaim and compel plaintiff to accept said reply (see Fugazy v. Fugazy, 44 AD3d 613, 614 [2d Dept 2007]; Fried v. Jacob Holding, Inc., 110 AD3d 56, 65 [2d Dept 2013]; Wimbledon Fin. Master Fund, Ltd. v. Laslop, 169 AD3d 550, 551 [1st Dept 2019]). Accordingly, defendant’s leave to enter judgment upon the plaintiff’s default in replying to the counterclaims pertaining to setting aside the parties prenuptial agreement dated May 16, 2018 is denied. Plaintiff is hereby ordered to file a reply to defendant’s counterclaim within twenty (20) days of this decision, with notice of entry. Summary Judgment A motion for summary judgment “shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR §3212(b)).”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 eliminate any material issues of fact” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In determining a motion for summary judgment, the court must view evidence in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party (see Moonilal v. R.C. Church of St. Mary Gate of Heaven, 225 AD3d 592, 593 [2d Dept 2024]; McKenna v. McKenna, 121 AD3d 864, 865 [2d Dept 2014]). “Summary judgment is a ‘drastic remedy’ that should only be employed where no doubt exists as to the absence of triable issues” (Leighton v. Leighton, 46 AD3d 264, 265 [1st Dept 2007]). “The court’s function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist” (Green v. Quincy Amusements, Inc., 108 AD3d 591, 592 [2d Dept 2013]; see also Kolivas v. Kirchoff, 14 AD3d 493, 493 [2d Dept 2005]). “A motion for summary judgment ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’” (McKenna v. McKenna, 121 AD3d 864, 865 [2d Dept 2014] quoting Ruiz v. Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]). Here, the defendant is seeking summary judgment to set aside the parties’ prenuptial agreement on the basis that the agreement is unconscionable, fraudulent and/or is the result of overreaching. Prenuptial Agreement “A strong public policy exists in favor of parties deciding their own interests through premarital contracts, and a duly executed prenuptial agreement is given the same presumption of legality as any other contract” (Gottlieb v. Gottlieb, 138 AD3d 30, 36 [1st Dept 2016]; see Kalousdian v. Kalousdian, 35 AD3d 669, 670 [2d Dept 2006]; see also Bloomfield v. Bloomfield, 97 NY2d 188, 193 [2001]). “There is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties” (Brassey v. Brassey, 154 AD2d 293, 294 [1st Dept 1989]). “Thus, a prenuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside” (Gottlieb v. Gottlieb, 138 AD3d 30, 36 [1st Dept 2016]). Despite the presumption that a duly executed written instrument which was deliberately prepared by the parties manifests their true intentions (see Matter of In re Fizzinoglia, 118 AD3d 994, 995 [2d Dept 2014], affd, 26 NY3d 1031 [2015]), an agreement between prospective spouses can be set aside where if the party challenging the agreement demonstrates that it was the product of fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct (see Bibeau v. Sudick, 122 AD3d 652, 655 [2d Dept 2014]; Marinakis v. Marinakis, 196 AD3d 472, 473 [2d Dept 2021]; Christian v. Christian, 42 NY2d 63, 72 [1977]; Anonymous v. Anonymous, 123 AD3d 581, 582 [1st Dept 2014]). “In the absence of such inequitable conduct, however, courts should not redesign the bargain reached by the parties merely because in retrospect the provisions might be viewed as improvident or one-sided” (Gottlieb v. Gottlieb, 138 AD3d 30, 37 [1st Dept 2016]). “Equity will not relieve a party of its obligations under a contract merely because of the benefit of hindsight” (see Scheinberg, Contract Doctrine and Marital Agreements in New York [NYSBA 4th ed., pp. 27-20]). Rather, judicial review should be “exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions” (Christian v. Christian, 42 NY2d 63, 71-72 [1977]). Here, defendant-husband as the party seeking to challenge the validity of the prenuptial agreement has the heavy burden of setting it aside. The Court will address the following allegations of inequalities raised by the defendant-husband seeking to set aside the parties’ prenuptial agreement: Overreaching analysis 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 (see Gottlieb v. Gottlieb, 138 AD3d 30, 37 [1st Dept 2016]; Stawski v. Stawski, 43 AD3d 776, 777 [1st Dept 2007]; Panossian v. Panossian, 172 AD2d 811 [2d Dept 1991]). “In the absence of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed” (Forsberg v. Forsberg, 219 AD2d 615, 616 [2d Dept 1995]). “Conclusory allegations of fraud are insufficient to raise a question of fact as to the validity of such agreement as would preclude summary judgment” (Id.) Lack of Representation at Signing and Negotiation Defendant raises the issue that he signed the prenuptial agreement without the benefit of counsel. He argues that he was not represented by counsel, nor did he consult with an attorney at the time of drafting, negotiation, or signing of the parties’ prenuptial agreement. He contends that he appeared at plaintiff’s prior attorney’s office, who only represented the plaintiff’s interest, and left with “a take it or leave it proposition seven days prior to the wedding if he wanted to marry [plaintiff].” [T.7/16/2024, p. 6, 7-8]. Defendant argues that this constitutes duress. The court notes that defendant acknowledged that he was told that “[he] ‘could’ hire a second attorney to review agreement with [him].” However, he contends that it was “presented to [him] as ‘unnecessary’”. The “absence of legal representation, without more, does not establish over-reaching or require an automatic nullification of the agreement” (see Forsberg v. Forsberg, 219 AD2d 615, 616 [2d Dept 1995].Thus, the defendant-husband’s position that he was deprived of the advice of independent counsel when negotiating and executing the prenuptial agreement is insufficient to prove overreaching on the part of the plaintiff (see Hershkowitz v. Levy, 190 A.D.3d 835, 837 [2021]). Additionally, defendant’s allegations that he signed the agreement while under duress is further rebutted by the recitation to the contrary in the prenuptial agreement which clearly states under Section 1, entitled “REPRESENTATION BY LEGAL COUNSEL”, page 2, that “[Defendant] has had an opportunity to retain independent legal counsel has decided on his own volition without the threat of any harm or duress to represent himself.” The agreement further recites under Section 23, page 24, entitled “FREE AND VOLUNTARY ACT. TIME FOR REFLECTION” that “[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.” Further, defendant’s contention that he believed that if he did not sign the agreement the plaintiff would have cancelled the wedding that was only seven (7) days away is insufficient to demonstrate duress. The Second Department has held that a spouse’s “threat to cancel the wedding if the [prenuptial] agreement was not signed did not establish duress” (Weinstein v. Weinstein, 36 A.D.3d 797, 799 [2d Dept.,2007]; see also Ku v. Huey Min Lee, 151 A.D.3d 1040 [2d Dept., 2017] [The Appellate Division, Second Department held that prenuptial agreement "executed by the parties 10 days before their wedding" was alone not sufficient to establish the requisite level of overreaching and duress]). Waiver of Equitable Distribution of Property Purchased During the Marriage It is well-established that prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law §236(B) (Van Kipnis v. Van Kipnis, 11 NY3d 573, 577 [2008]). Under New York law, “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement” is considered martial property (see Domestic Relations Law §236 [B] [1] [c]). Separate property is defined to include “property described as separate property by written agreement of the parties pursuant to subdivision three of this part” (Domestic Relations Law §236 [B][1][d][4]). Domestic Relations Law §236(B) provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage marital property must be distributed equitably between the parties while separate property shall remain separate (see Domestic Relations Law §236 [B][5][a]-[c]; see also Van Kipnis v. Van Kipnis, 11 NY3d 573, 577 [2008]; Strong v. Dubin, 75 AD3d 66, 68 [1st Dept 2010]). However, parties may choose to waive or opt out of this statutory framework by entering into an agreement before or during the marriage (see Maddaloni v. Maddaloni, 142 AD3d 646, 650 [2d Dept 2016]. Under the Domestic Relations Law §236(B)(3), such an agreement is valid and enforceable if it “is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (Domestic Relations Law §236(B)(3); see also Matisoff v. Dobi, 90 N.Y.2d 127, 130, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997]).], and may include a “provision for the ownership, division or distribution of separate and marital property” (Domestic Relations Law §236(B)(3)). Here, each party waived their rights in the other party’s separate property, which is defined in the prenuptial agreement as follows: Section 3, pages 4-7, entitled “Waiver of Claims to Separate Property” defines “Separate Property” as such: “I. “SEPARATE PROPERTY” as used herein, shall include but not be limited to all of the following: i. The properties listed on the attached Schedules A or B, any properties acquired before the marriage, and any properties acquired during the marriage by bequest, devise or descent, or gift from a third party shall be deemed Separate Property. ii. Property acquired in exchange for a party’s Separate Property shall be such party’s Separate Property, if said property exchange is of equal value. iii. Any interest in degrees, licenses, practices, career, earnings capacity, or any actual or beneficial interest in any business, in each case, acquired either before or during the marriage. a) [Defendant] waives any claim or interest in [Plaintiff]‘s ownership stake of business known as [J.B. LLC]. [Plaintiff]‘s ownership stake at time of signing of this agreement is twenty (20) percent. iv. all property or accounts (bank, brokerage, retirement) titled in the party’s name alone, acquired prior to or during the marriage; v. the party’s ownership share of any property titled as joint tenants with right of survivorship with a third party acquired prior to or during the marriage; vi. the party’s ownership share of any property titled as tenants in common, whether with a third party or with the other party to this agreement, in accordance with such title or other instrument acquired prior or during to the marriage; a) [Defendant] waives any claim to ownership or appreciation of property located at [x Tribeca Avenue, Jersey City, NJ] which [Plaintiff] owns with a third party. vii. the value of a party’s interest in a business or professional services practice at the time of the parties’ marriage regardless of when such interest was acquired; viii. the party’s earnings acquired prior to or during the marriage; ix. the party’s retirement benefits both from social securities and any other private or work pensions, as well as any pension benefits derived from any insurance policy accumulated or vested prior to or during the marriage; x. any property acquired by the party after the date of this Agreement by gift (including a gift from one party to the other regardless of the source of funds) survivorship, operation of law, under the laws of intestate succession, a will, trust, or similar instrument, or beneficiary designation; xi. any appreciation in the value of the party’s separate property; xii. all income from the party’s separate property; xiii. all money or other property received by a party in satisfaction of a judgment for injury to his or her person or under an agreement for the settlement or compromise of a claim for such injury, except for an amount that represents reimbursement of expenses, present and future earnings, present and future medical and/or related rehabilitative costs, and for any claims attributable to loss of companionship or consortium; xiv. all contest winnings, prizes and awards, whether or not acquired based on the party’s skill or knowledge or otherwise derived from the party’s separate property, except in the event marital funds were used to achieve such winnings, prizes or awards; xv. all proceeds of a loan secured by a lien on a party’s separate property, provided said loan is not repaid with marital funds; xvi. all wedding and engagement rings will be considered gifts to each other; xvii. all property, other than jointly titled property, acquired, including, but not limited to, property acquired with funds from a party’s separate property financial institution account, the proceeds from the sale of, or in exchange for, a party’s separate property or with the proceeds of a loan secured by a lien on the party’s separate property, except in the event marital funds were utilized in any way with these transactions; xviii. all property acquired solely with a party’s separate property; xix. that portion of personal property clearly and directly traceable to a party’s separate property; xx. a party’s clothing, jewelry, electronics, furniture, sports equipment, and personal effects without regard to the source of funds for acquisition; xxi. the party’s pro rata share of any overpayment of income taxes (notwithstanding that a refund check may be jointly titled). xxii. Property acquired by a party after the termination of the marriage provided no marital funds are utilized in the acquisition of same.” Moreover, pages 7-8 delineate what constitutes martial property as follows: “B. “MARITAL PROPERTY” as used herein, is limited strictly to: i. funds or securities held in a jointly titled account in a financial institution (such as a bank, credit union, or securities brokerage) account of the parties herein as tenants by the entirety, joint tenants with right of survivorship, or tenants in common, without regard to the source of funds, except as provided elsewhere in this agreement; ii. all other jointly titled property held by the parties as tenants by the entirety or joint tenants with right of survivorship. iii. any appreciation in the value of marital property; iv. all income from marital property; v. all proceeds of a loan secured by a lien on marital property; vi. all property acquired with marital property, including, but not limited to, property acquired with funds from a jointly titled financial institution account, with the proceeds from the sale of, or in exchange for, marital property or with the proceeds of a loan secured by a lien on marital property. vii. all marital property shall be divided equally amongst the parties a) If a party contributes their individually titled separate property towards the initial down payment on a purchase of real property, following an operative event as defined herein, in the event of a sale each party will receive credit for their initial separate property contribution and share equally any remaining equity in the real property.” Bolded Language and the parties’ understanding based upon the bolded language Defendant contends that plaintiff’s prior counsel intentionally bolded certain terms in the agreement to make him believe that the only assets protected were those assets acquired by the parties prior to the marriage or property acquired in exchange for that separate property. Particularly, in Section 3, page 4, entitled “Waiver of Claims to Separate Property” provides: “The parties hereby mutually acknowledge and agree that all items of property acquired by each other prior to the marriage (language bolded in the prenuptial agreement), is the separate property of [Plaintiff] and [Defendant] respectively, within the meaning of Section 236, Part B, of the Domestic Relations Law of the State of New York. Such property acquired prior (language bolded in the prenuptial agreement) to the marriage of [Plaintiff] and [Defendant] is exempt from equitable distribution in the. event of divorce or other judicial termination of the marriage between [Plaintiff] and [Defendant].” Further, Section 3, pages 8-9 provide the following clauses: “D. Any property acquired by [Plaintiff] with the use of, or in exchange for, any of such property owned prior to the marriage (language bolded in the prenuptial agreement), or any appreciation therein, shall remain the sole and separate property of [Plaintiff]; and [Defendant] waives and relinquishes, now and forever: (a) any and all claims, whether arising by operation of the Domestic Relations Law of the State of New York or otherwise, to any and all appreciation in the value of such property; and (b) any and all claims to all or part of the interest or income heretofore earned on or by reason of such property. E. Any property acquired by [Defendant] with the use of, or in exchange for, any of such property owned prior to the marriage (language bolded in the prenuptial agreement), or any appreciation therein, shall remain the sole and separate property of [Defendant]; and [Plaintiff] waives and relinquishes, now and forever: (a) any and all claims, whether arising by operation of the Domestic Relations Law of the State of New York or otherwise, to any and all appreciation in the value of such property; and (b) any and all claims to all or part of the interest or income heretofore earned on or by reason of such property.” “Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made” (Marinakis v. Marinakis, 196 AD3d 472, 474 [2d Dept 2021]). Here, both parties initialed each page of the prenuptial agreement when they executed and signed it. There are no allegations of any language barriers. The parties’ prenuptial agreement clearly specifically designates what constitutes separate property and what constitutes martial property. The parties’ prenuptial agreement specifically designates as separate property assets which would ordinarily, be considered martial property and be subject to equitable distribution. In pertinent part, under Section 3, page 5, entitled “SEPARATE PROPERTY”, item iv of the prenuptial designates separate property to include: “all property or accounts (bank, brokerage, retirement) titled in the party’s name alone, acquired prior to or during the marriage.” As a result, property the plaintiff-wife acquired during the marriage, if solely titled in her name, would be considered the wife’s separate property and not be subject to equitable distribution. The Court finds that, under the facts and circumstances presented here, there is no merit to defendant’s contentions that the bolded terms in the agreement led him to believe that the only assets protected were those assets acquired by the parties prior to the marriage or property acquired in exchange for that separate property. The court notes that although “prior to the marriage” is bolded in the parties’ prenuptial agreement four (4) times in the agreement, and “during the marriage” is not bolded anywhere in the agreement, on page 8, immediately following the designation of separate and marital property, it clearly states that: “C. [Plaintiff] and [Defendant] specifically waive and relinquish, now and forever, any and all claims to the ownership of, or to any interest in any and all separate property of the other party. The parties hereby waive and relinquish, now and forever: (a) any and all claims to all or part of the present value of separate property; (b) any and all claims, whether arising by operation of the Domestic Relations Law of the State of New York or otherwise, to any and all appreciation in the value of the separate property whether acquired before or after marriage (language bolded in the prenuptial agreement); and (c) any and all claims to all or part of the interest or income heretofore earned on or by reason of separate property. Read in its entirety, the bolded language does not rise to the level of inquiry into the understanding of the agreement or deception that defendant now alleges. Further, the Court finds that plaintiff alleged representations to defendant that the purpose of the prenuptial agreement was only to protect any assets that they each own as of the day of marriage is insufficient to overcome the clear and unambiguous language of the parties’ prenuptial agreement which precludes equitable distribution of the parties’ separate property (see Freed v. Kapla, 129 AD3d 615, 616 [1st Dept 2015]). The unambiguous intent of the pre-nuptial agreement was to designate property title in a party’s name alone as separate property, therefore, there is no need to resort to extrinsic evidence. Additionally, the prenuptial agreement expressly provides on page 18, Section 13, entitled “ENTIRE UNDERSTANDING”, that: “Each party acknowledges that in entering into this Agreement he or she is not relying upon any representations, warranties, promises, covenants, undertakings or inducements of any kind, express or implied, oral or otherwise, other than those expressly set forth herein. Any prior conversations of the parties concerning their respective rights in the property of the other by reason of their marriage have been merged and incorporated into this Agreement. No oral statement or prior written matter outside of this Agreement shall have any force or effect.” Moreover, defendant is presumed to know the contents of the agreement he has executed (see Hershkowitz v. Levy, 190 AD3d 835 [2d Dept 2021]; Prompt Mortg. Providers of N. Am., LLC v. Zarour, 155 AD3d 912, 914 [2d Dept 2017] quoting Nerey v. Greenpoint Mortg. Funding, Inc., 144 AD3d 646, 648 [2d Dept 2016]). This Court is aware that in cases where the imbalance is extreme it is appropriate for equity to intervene; however, 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. The Court finds that the circumstances surrounding the execution of the agreement disclose no issue of fact as to whether there was overreaching. Since the circumstances surrounding the execution of the agreement raise no issue of fact as to whether there was overreaching, this Court need not inquire into whether the terms of the agreement are manifestly unfair on this basis. Unconscionability analysis An unconscionable agreement “is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” (Ku v. Huey Min Lee, 151 AD3d 1040, 1041 [2d Dept 2017], quoting Morad v. Morad, 27 AD3d 626, 627 [2d Dept 2006]; see also Christian v. Christian, 42 NY2d 63, 71 [1977]; Gottlieb v. Gottlieb, 138 AD3d 30, 47 [1st Dept 2016]; Sanfilippo v. Sanfilippo, 137 A.D.3d 773, 774 [2d Dept 2016]; McCaughey v. McCaughey, 205 AD2d 330, 331 [1st Dept 1994]). “However, an agreement is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided’” (Schultz v. Schultz, 58 AD3d 616 [2d Dept 2009], quoting O’Lear v. O’Lear, 235 AD2d 466 [2d Dept 1997]; Label v. Label, 70 AD3d 898, 900 [2d Dept 2010]). “Simply alleging an unequal division of assets is not sufficient to establish unconscionability. Id. As relevant here, unconscionability is found when a prenup is manifestly unfair given the nature and magnitude of the rights waived and in light of the vast disparity in net worth between the parties (see Smith v. Smith, 129 AD3d 934, 935 [2d Dept 2015]). Courts have further held that “[a]n agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered” (Taha v. Elzemity, 157 A.D.3d 744, 746 [2d Dept.,2018]; see also Mahadeo v. Mahadeo, 193 AD3d 841 [2d Dept 2021] [The court set aside the prenuptial agreement as a matter of public policy since at the time of plaintiff's motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources]). Financial disparity While it has been established that “significant financial disparity between the parties that presumably will result does not, without more, justify vitiating the parties’ freely negotiated agreement” (Lorenc v. Lorenc, 178 AD3d 623, 624 [1st Dept 2019]). Plaintiff’s failure of generosity on the issue of maintenance does not render the agreement unconscionable. In the case herein, the parties fully disclosed their respective assets and liabilities, which were attached to the agreement as Schedule A and B. The Court notes at the time the agreement was executed the parties’ respective incomes were not listed. However, the fact that the wife did not disclose her exact income at the time the prenuptial agreement was executed, standing alone, is insufficient to set aside the prenuptial agreement (see Gottlieb v. Gottlieb, 138 AD3d 30, 38 [1st Dept 2016]; Matter of In re Fizzinoglia, 118 AD3d 994, 996 [2d Dept 2014], affd, 26 NY3d 1031 [2015]). (See Smith v. Walsh-Smith, 66 AD3d 534, 535 [1st Dept 2009] [The court determined that plaintiff's failure to include his income in his financial is not by itself sufficient to vitiate the agreement. The Court in Smith found that the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed, and there is no evidence that plaintiff used his wealth as leverage to coerce defendant to sign the agreement]). Waiver of Spousal Maintenance 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 (Domestic Relations 236 (B)(6)). At issue is whether when waiving spousal maintenance, it is required that a self-represented spouse-to-be entering into a prenuptial agreement must be provided with the presumptive maintenance calculations in order to knowingly waive spousal maintenance. This Court determines that the full presumptive maintenance calculations is required to provide a knowing waiver. Spiegel v. Spiegel, 206 AD3d 1178 [3d Dept 2022] addressed concerns pertaining to a prenuptial which failed to comply with the requirements of Domestic Relations Law former §236(B)(5 — a)(f). The court in Spiegel held that “at the time that the parties entered into the agreement, Domestic Relations Law former §236(B)(5 — a)(f) required that any agreement concerning temporary maintenance in which the parties deviated from the presumptive award must include language advising the parties of the amount of that award and further include the reasons that the parties had deviated from the payment of that amount” (Spiegel v. Spiegel, 206 AD3d 1178, 1183 [3d Dept 2022]). The court in Spiegel determined that inasmuch as the parties “deviated from the presumptive award of temporary maintenance, and the maintenance provision in the agreement failed to provide a calculation of the presumptive award or any reasoning for deviating from same at a time when Domestic Relations Law former §236(B)(5 — a)(f) required such language”, both temporary and permanent provision were required to be vacated. Id. Full Presumptive Maintenance Calculations Parties are entitled to opt-out of the post-divorce maintenance computational formula established in Domestic Relations Law §236 provided that the parties comply with Domestic Relations Law §236(B)(3). Domestic Relations Law §236(B)(3) states that: “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include…provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.” In the case at bar, under Section 6 of the prenuptial agreement, entitled “SPOUSAL MAINTENANCE”, page 13, after recitation of the maintenance guidelines, the maintenance provision provides: “[defendant-husband] will neither seek nor require any maintenance, temporary, permanent or otherwise, or support for himself from [plaintiff] and, therefore, no provision for support or maintenance for [defendant-husband] is made herein.” Further, the “Opting Out Provisions”, on page 14, states: “[e]ach party acknowledges that he/she has been advised of the provisions of New York Domestic Relations Law §236, Part B, Section 5-a (the “Temporary Maintenance Presumption”), including as amended in June 2015 and signed into law in September 2015, as well as the provisions of New York Domestic Relations Law §236, Part B, Section 6 (Post-Divorce Maintenance Presumption”)…, which relate to the presumptive correct amount of temporary and post-divorce maintenance, and each party specifically waives and opts out of the application of the Temporary Maintenance Presumption, the Post-Divorce Maintenance Presumption as well as ongoing support or spousal maintenance of any kind.” Defendant contends that he waived his right to spousal support without knowledge of what he would potentially have been entitled to under the post-divorce maintenance formula contained in the Domestic Relations Law. In opposition, plaintiff’s counsel makes the distinction between settlement in matrimonial cases and prenuptial agreements arguing that, for settlement in matrimonial cases “the parties are obligated to run the presumptive calculation and explain whether there’s a conforming or a deviation from the guideline” [T. 7/16/2024, p.22, 17-19], however, plaintiff’s counsel contends that there is no such affirmative requirement for prenuptial agreements. Plaintiff’s counsel argues that prenuptial agreements should only be guided under the construction of contracts and are not bound by the maintenance guidelines statute. Defendant’s counsel argues that “if a knowing waiver is needed in the context of a separation agreement or a stipulation of settlement by a Pro Se litigant, I am not sure why that wouldn’t extend to a prenuptial agreement, which is going to be incorporated into a judgment that is enforced ultimately” [T. 7/16/2024, p.22, 17-19]. The Court rejects plaintiff-wife’s contentions. Waiver of maintenance under the maintenance guidelines statute is predicated upon what can be termed “knowing waiver” of what the guidelines sum of maintenance would be but for the waiver. The statute expressly provides that the calculation must be fully articulated where there is a self-represented party (see Domestic Relations Law §236(B)(6)(g)). This requirement is intended to ensure that litigants who do not have the benefit of legal counsel have a full and fair opportunity to know what they may be entitled to under the maintenance guidelines statute in the form of an explicitly articulated sum. Only after such an articulated sum is detailed can a self-represented party or parties make a “knowing waiver” of that right. Without an expressly articulated sum resulting from the statutory calculation, any “waiver” by a self-represented litigant is, pursuant to the statute, not knowingly made. 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 or 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 (see generally Spiegel v. Spiegel, 206 AD3d 1178 [3 Dept.,2022]). Plaintiff argues, in effect, that it is harmless error that the calculation is not included because parties’ incomes may change over time and there is no assurance that the calculation as of the date parties enter into a prenuptial agreement will remain relevant as of the date a party moves to enforce the prenuptial agreement; however, the statute requires only that waiver be knowing made at the time it is waived. 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. Here, the prenuptial agreement recites the statutory formula; however, neither party’s income as of the time they entered into the agreement is included. Without incomes provided, there was no way to include the full calculation of the maintenance guidelines sum and without that sum there could be no knowing waiver. Moreover, because the full presumptive maintenance calculations were not provided to the defendant, who was not represented by legal counsel, the entire provision related to spousal maintenance must be vacated. The Court notes in section 11, pages 18-19 of the parties’ prenuptial agreement there is a severability clause, which would render the remainder of the agreement enforceable (see Spiegel v. Spiegel, 206 AD3d 1178, 1183 [3d Dept 2022]; see also Christian v. Christian, 42 NY2d 63, 73 [1977]); Matter of Wilson’s Estate, 50 NY2d 59, 65 [1980]). In light of the court’s decision to vacate the spousal maintenance provision in the parties’ prenuptial agreement, the Court need not address the defendant-husband’s contention relating to whether the maintenance provision was unconscionable. Compliance with General Obligations Law 5-311 It is well-established that there can be no waiver of maintenance where it would place either party at risk of becoming a public charge (see General Obligations Law 5-311). General Obligations Law 5-311 provides, as relevant hereto: “…a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” Here, the provision purporting to relieve the parties of any right to provide maintenance to the other provided no representation as to either parties’ income as of the date of the agreement and made no affirmative representation as to whether the alleged waiver of support would not render either party a public charge. As such, the Court cannot find that the waiver did not also violate GOL 5-311 (see generally Bloomfield v. Bloomfield, 97 NY2d 188 [2001]). In Bloomfield, the Court of Appeals found that even if a party had knowingly waived a right to receive support under existing law at the time, the validity of support waivers in marital agreements are still governed by General Obligations Law 5-311 prohibition against contracts that relieve either spouse — husband or wife — from a requirement to support where doing so may make the other spouse a public charge (id. at 194). The Court notes that the general statement in section 10 (“Financial Disclosure”) on page 18 of the parties’ agreement that “[e]ach party is fully informed of the income, assets, property and financial prospects of the other” is insufficient, alone, to satisfy the obligation of the Court to ensure compliance with GOL 5-311. The Court finds that defendant has made a prima facie showing that he is entitled to summary judgment on the issue of the prenuptial agreement and maintenance. Plaintiff’s opposition is insufficient to defeat summary judgment on the issue of maintenance. As such, the Court grants partial summary judgment to the defendant on the issue of vacating the prenuptial agreement “waiver” of maintenance: the determination of and calculation of maintenance is hereby referred to the trial court, subject to any pendente lite application prior thereto. Counsel Fees Pursuant to Domestic Relations Law §237 (a) in pertinent part provides: “There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses” (New York Domestic Relations §237). It is well-established that “[a]n award of interim counsel fees is designed to create parity in divorce litigation by enabling the nonmonied spouse to litigate the action on equal footing with the monied spouse” (Palmeri v. Palmeri, 87 AD3d 572, 572 [2d Dept 2011]). “[A]n award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties” (Id. quoting Prichep v. Prichep, 52 AD3d 61, 65 [2d Dept 2008]). The court in Prichep v. Prichep recognized that “courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause — for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case — articulated by the court in a written decision.” Id. “[U]nlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees” (Isaacs v. Isaacs, 71 AD3d 951, 951 [2d Dept.,2010]; see also Prichep, 52 AD3d at 65; Singer v. Singer, 16 AD3d 666, 667 [2d Dept.,2005]; Flach v. Flach, 114 A.D.2d 929, 929 [2 Dept.,1985]). In Frankel v. Frankel, the Court of Appeals recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds”, and “that more frequent interim counsel fee awards would prevent accumulation of bills” (Frankel v. Frankel, 2 NY3d 601, 607 [2004]).” “[W]hen considering an application for interim counsel fees, the court must consider the relative financial circumstances of both parties” (Charpie v. Charpie, 271 AD2d 169, 171 [1st Dept.,2000]). “An appropriate award of attorney’s fees should take into account the parties’ ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances” (Grumet v. Grumet, 37 AD3d 534, 536 [2d Dept.,2007]). In the instant matter, defendant-husband is seeking $25,000.00 in counsel fees. The parties’ pre-nuptial agreement does not preclude an award of interim counsel fee (see DelDuca v. DelDuca, 304 AD2d 610, 611 [2d Dept 2003]). Defendant contends that unlike plaintiff-wife who receives financial assistance from her family and has multiple income generating rental properties he has limited assets and income and no means of defending himself in this action. Plaintiff is a pharmacist at NYU Langone Health. Her 2022 individual tax return shows that she had an adjusted gross income of $110.645.00 [NYSCEF #42]. Plaintiff’s statement of net worth, dated July 27, 2023 [NYSCEF #42], lists $19,189.21 in her checking accounts, and $23,165.96 in her saving accounts. Plaintiff also has a 403B retirement account that has a current value of $95,852.36 and jointly owns two (2) real estate property with her sister. Plaintiff indicates that the Jersey City Townhome has a current estimated market value of $405,000.00 and the Brooklyn two-family home has a current estimated market value of $1,464,200.00. Additionally, Plaintiff has life insurance with Thrivent (Appleton, WI) that has a cash surrender value of $22,382.68. Plaintiff indicates that she has a total of $9,141.23 in credit card debt. The parties currently reside rent-free in an apartment owned by plaintiff’s parents; defendant concedes that plaintiff pay the utilities for the apartment. Defendant is a self-employed photographer. Defendant’s 2022 individual tax return shows that he had an adjusted gross income of $28,323.00 [NYSCEF #29]. Defendant’s statement of net worth, dated August 23, 2023 [NYSCEF # 28], lists $9,586 in his checking account, $25.00 in his savings account, and a total of $1,552 in credit card debt. In support of his claim for counsel fees, defendant submitted a retainer agreement dated May 1, 2023 [NYSCEF # 27] and billing invoices for counsel fees [NYSCEF #28]. In pertinent part, defendant’s retainer agreement shows that there is an initial retainer of $10,000.00, and the retainer fee shall be credited at the hourly rate of $495.00 per hour for time expended by his counsel and $150.00 per hour for time expended by paralegals/and or law clerks. The invoices show billing for service provided from May 1, 2023 through December 28, 2023 totaling $13,941.00. Defendant’s counsel has had extensive experience as outlined in her affirmation in support. During oral argument July 16, 2024, defendant’s attorney represented that her firm has been paid approximately $30,000.00, and plaintiff’s prior counsel represented that he has been paid approximately $20,000.00. The parties are currently unable to reach a resolution on custody and parenting time of the parties’ child. Given the parties differing positions on the issue of custody and parenting time the Court recognizes that litigating this issue will require counsel fees to prepare for trial which defendant will be unable to sustain based upon his representation as to income. The Court finds that under the facts and circumstances presented here, including the nature of the issues raised, the parties’ income and assets and liabilities, as sworn to in their respective affidavits of net worth, the retainer agreements, the qualifications of defendant’s counsel and the fact that plaintiff is clearly the monied spouse as contemplated by Domestic Relations Law §237(a), creating a significant financial disparity, an award of pendente lite counsel fees in the sum of $20,000.00 to the defendant-husband is just and appropriate. This award of $20,000.00 to the defendant-husband for pendente lite attorney’s fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see Domestic Relations Law §237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 A.D.2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v. Jorgensen, 86 A.D.2d 861, 861 [2 Dept.,1982]). The payment in this award of pendente lite counsel fees of $20,000.00 shall be made directly from the plaintiff to the defendant’s counsel within thirty (30) days of service of notice of entry of this decision and order. If the plaintiff fails to make the payment in compliance with this decision and order the defendant’s attorney may enter a judgment for the full amount then due and owing, plus statutory costs and interest, retroactive to the date of the default, with the Office of the County Clerk upon ten (10) days written notice by overnight and regular mail to the plaintiff and without further application to this Court. CONCLUSION The application of the defendant for an entry of a judgment on his counterclaims to set aside the parties’ prenuptial agreement and pursuant to CPLR 3017 to declare that the entire prenuptial agreement is null and void are denied for the reasons stated herein. Summary judgment pursuant to CPLR 3212 is granted to the limited extent of granting partial summary judgment and vacating those provisions of the prenuptial agreement related to maintenance for the reasons stated herein. An award of pendente lite counsel fees in the sum of $20,000.00. Defendant’s motion seq #1 is granted to the extent. This shall constitute the decision and order of the court.