New York Family Law Blog
This case is being held in the Supreme Court of the State of New York in Richmond County. The plaintiff of the case is P.B. and the defendant is L.B. The defendant wife has filed a motion for dismissal of the plaintiff’s action for divorce.
Case Background
A New York Family Lawyer said the couple was married in September of 1996. In July of 2005, the parties entered a written agreement of separation. This was filed with the clerk in the Richmond County Court. On the fourteenth page of the separation agreement it states that the husband shall not pursue a divorce against the wife for a period of five years after signing this agreement without the prior written consent of the wife.
In March of 2007, over a year after entering the separation agreement the plaintiff filed for divorce by a summons with notice. A New York Custody Lawyer said the grounds for the divorce stated abandonment, constructive abandonment, cruel and inhuman treatment and that they have been living apart for more than a year.
Defendant Argument
The defendant argues that the matter should be dismissed based on the described bar in the separation agreement. She states that she has not provided her husband with the written consent that is required by the separation agreement for him to seek divorce. The plaintiff does not dispute the fact that written consent has not been provided by the defendant. The defendant wife is also seeking attorney’s fees for this case stating that the action for divorce is frivolous.
Plaintiff Argument
A Bronx Family Lawyer said the plaintiff husband’s attorney argues that his client entered the separation agreement without the assistance or advice from any counsel. While the argument made by the defendant’s counsel in regard to this is that it is without merit, the attorney for the plaintiff points out that the fact is explicitly outlined on the eleventh page of the agreement where it is stated that “the husband has been advised to obtain counsel in order to represent him in all of the matters related to this separation agreement.”
The plaintiff’s counsel further argues that the provision that requires a five year wait before being able to file for divorce is an improper injunction and violates existing laws. He argues that the agreement should be void as it is against public policies and the defendant does not have the right to retract an inalienable right.
Court Discussion and Decision
The court finds in favor of the plaintiff and the motion made by the defendant is denied entirely. The provision that is in the separation agreement and relied on by the defendant for her case is found to be void as it is considered to be against public policy and unconscionable. It is also void as it attempts to circumvent the prerequisite for divorce of separation for a year to five years by the contract.
A Bronx Custody Lawyer said the court agrees that there cannot be a provision made in a separation agreement that attempts to take away the right of a party to seek a divorce. Using the agreement as a basis for this argument is against the laws of the state that are clearly defined. The plaintiff is given the right to serve his complaint for divorce and the parties will appear before the court at a later date for a preliminary conference for the divorce proceeding.
Stephen Bilkis & Associates offer offices throughout New York City for your convenience. We offer free consultations on your first visit to our office. Contact us today to come in and discuss your legal issue with one of our expert litigators.