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June 20, 2006

Where a prenuptial agreement spells out what spousal support a wife is to receive upon divorce, is temporary spousal support included in that amount? No, says our court in Cangemi v. Cangemi. The parties married in 1996, at which time the husband had a net worth of just north of $8 million, compared to the wife's $33,000. The prenup provided the wife was to receive $5,000 a month for one year in spousal support upon the journalization of a divorce decree. She filed for divorce three years later, and the court ordered temporary support of $6,000 a month. It took six years until the final decree, and in the interim hubby coughed up enough in temporary support to fund a small South American republic. His argument that the temporary support should have counted toward his final tab fell on deaf ears, and for good measure, he had to pay $15,000 toward his ex-wife's attorney fees. Ain't love grand?

That's a bit too flippant, actually. (Flippant? Moi?) Judge Cooney's opinion - joined in by Judges Karpinski and McMonagle - was meticulously thorough, and there's no real basis for quibbling with the result: the decision with regard to temporary alimony is supported by the case law, and most of the specific determinations, some of which went against the wife, were essentially dictated by the language of the agreement.

Somewhat interesting, though, is the opinion's assertion that "a strict application of the law of contracts is not appropriate, rather, the terms of the agreement and the intent of the parties at the time of execution of the agreement is of prime importance." It's not entirely clear what that phrase means; obviously, "the terms of the agreement" and "the intent of the parties" are part of the law of contracts. There's language in other decisions, such as the Supreme Court case of Fletcher v. Fletcher that prenups are "contracts and generally the law of contracts applies to their interpretation and application."

To be sure, they're not treated the same as the ordinary business contract, because of the fiduciary relationship of the parties, and there's no question that the alimony provisions, at least, can receive heightened scrutiny for unconscionability. That's one reason that spouses who rely on such agreements often find that they don't offer nearly the protection originally envisioned. It's possible that some creative lawyers might seize on the remark in Cangemi to argue that the divorce court's equitable powers give it even greater ability to fashion a remedy not entirely, or even closely, consistent with the provisions of the prenuptial agreement.

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