Gottlieb v. Gottlieb (138 A.D.3d 30, 2016)

OPINION OF THE COURT

Richter, J.

In anticipation of their planned marriage, plaintiff Jacob Gottlieb (the husband) and defendant Alexandra Lumiere Gottlieb (the wife) entered into a prenuptial agreement. The agreement was the product of months of negotiations among the parties and their attorneys, and provided for, in the event of a divorce, the distribution of assets, spousal maintenance and health insurance, inheritance rights, and the purchase by the husband of a luxury apartment in which the wife and children would reside. Prior to the agreement’s execution, the wife’s counsel, an experienced matrimonial practitioner, advised her not to sign it, but the wife ignored that advice.

After the parties’ marriage broke down, the husband filed this divorce action and the wife moved to set aside the agreement, claiming it was the product of overreaching resulting in manifestly unfair terms. The motion court dismissed the wife’s claim that the entire agreement is unenforceable, but reserved for trial the limited issue of whether the agreement’s maintenance provisions could be enforced. For the reasons that follow, we reject all of the wife’s challenges to the agreement, and issue declarations in the husband’s favor upholding the agreement and all its provisions. We also vacate the court’s award of interim counsel fees to the wife and remand the matter for further proceedings on that issue.

The wife, now 37 years old, was born in New York City, attended private schools in Manhattan and Connecticut, and received a bachelor’s degree in economics from the University of Pennsylvania. After working for several years in advertising and finance, she decided to pursue a real estate career, and obtained a salesperson’s license and a position with Brown Harris Stevens, Inc. She later obtained a certification enabling her to teach yoga classes, but has not worked outside the home for several years. The husband, now 44 years old, also grew up in New York City, and obtained a bachelor’s degree from Brown University and a medical degree from New York University School of Medicine. After working as a portfolio manager for various financial firms, he started a hedge fund, of which he is currently majority owner.

The parties met in September 2003, began living together in the beginning of 2004, and became engaged in September 2005. Prior to the engagement, the husband told the wife that he would not marry her unless there was a prenuptial agreement, and the parties began to discuss terms. In October 2005, while negotiations were ongoing, the wife learned that she was pregnant. She told the husband that she did not want to have a child out of wedlock, and asked to finalize the prenuptial agreement so that they could marry before the child was born.

The parties discussed the terms of the prenuptial agreement many times during the wife’s pregnancy, but no agreement was reached. In mid-March 2006, after consulting with a number of attorneys, the wife retained the services of a partner in a prominent New York matrimonial firm. The husband, however, told the wife that, on the advice of his attorney, he would not finalize the prenuptial agreement, or marry her, until after the child was born. In May 2006, the wife gave birth to a daughter, and the negotiations temporarily abated.

In the fall of 2006, the wife asked her attorney to resume negotiations and finalize the terms of the agreement. In early 2007, the husband’s counsel sent a draft agreement to the wife’s counsel. In a letter dated March 2, 2007, the wife’s attorney proposed changes to the draft, many of which were incorporated into the final agreement. The letter states that the wife “understands all that she is potentially giving up by virtue of this Agreement.”

In April 2007, the wife learned that she was pregnant again, and told her counsel that she wanted to execute a prenuptial agreement as soon as possible. Counsel for both parties continued negotiating. In a letter dated April 20, 2007, the husband’s counsel sent the wife’s counsel a list of revisions to the draft agreement, incorporating many of the changes that had been proposed by the wife’s counsel. The husband’s counsel also sent a statement outlining the husband’s financial circumstances. On April 27, 2007, the wife went to her counsel’s office and signed the agreement. The wife concedes that she ignored her counsel’s advice not to sign the agreement. Several days later, the husband executed the agreement. The parties were married in May 2007 and their second daughter was born in November 2007.

The prenuptial agreement states that each party had legal counsel of his or her own choosing “who advised him or her fully with respect to his or her rights in and to the property and income of the other and with respect to the effect of this Agreement and that such party understands such advice.” Each party acknowledged that the agreement was “fair and reasonable and not unconscionable,” and was entered into “freely and voluntarily and not as a result of fraud, duress, coercion, pressure or undue influence exercised by the other.” The agreement also stated that the parties had been advised that they might acquire other rights granted to divorcing spouses, but that such rights could be limited or forfeited by the terms of the agreement.

The agreement defines marital property as (i) all property held jointly by the parties; and (ii) any property agreed to by the parties in writing. Separate property is defined in the agreement as all other property, including business interests, retirement benefits, professional licenses and educational degrees, income earned during the marriage, and any interest in the increase in value of the parties’ separate property. Although each party waived any right to equitable distribution, the agreement provided for the following in lieu of a distributive award. First, for each year of the marriage (up to a maximum of 15 years), the husband agreed to deposit into an investment account the sum of $300,000. In the event of divorce, the wife would receive these funds along with any accrued interest. Next, the parties agreed to divide equally all wedding gifts, and real property and financial accounts registered in both parties’ names. Any other marital property would be divided in proportion to each party’s financial contribution to the asset.

Further, if there were minor children of the marriage at the time of divorce, the husband agreed to purchase, at his total cost and expense, an apartment for the use of the wife and the children. The apartment was required to be in a full-service doorman building located between 60th and 80th Streets and Third Avenue and Broadway, above the third floor and with one bedroom each for the wife and the children. The husband agreed to pay the maintenance charges, utilities, and other expenses of the apartment, until all of the children reached the age of majority, at which point the wife would vacate the apartment. The husband also is obligated to pay the wife’s and children’s moving expenses to the apartment. The agreement also provides that two specified Manhattan apartments, including the residence occupied by the parties during their relationship, shall remain the husband’s, separate property.

With respect to spousal support, the parties each acknowledged that in light of his or her assets, education, employment history, and rights under the agreement, he or she is “self-supporting and has sufficient ability to maintain a reasonable and satisfactory standard of living.” Nevertheless, in the event of divorce, the husband agreed to pay the wife, as taxable maintenance, the sum of $12,500 per month, as long as there is a child of the marriage under the age of four. This amount was in addition to the husband’s agreement to purchase, and pay all costs for, an apartment for the wife to live in. The husband also agreed to pay, as nontaxable maintenance, the wife’s health insurance, until the parties’ children are emancipated. Aside from these provisions, the parties waived any additional spousal maintenance and acknowledged that such waiver was fair and reasonable. In addition, in the spousal support section of the agreement, the wife waived any right to counsel fees, both interim and final.

The agreement also provided for certain inheritance rights for the wife and children. The parties agreed that if the marriage was still intact at the time of the husband’s death, the wife would receive her elective share of the husband’s estate. In the event of divorce, the husband agreed to leave, either outright or in trust, a specified percentage of his estate to the children of the marriage. Finally, financial statements annexed to the agreement list each parties’ assets, liabilities and net worth, although the parties’ incomes were not included. The husband and the wife explicitly acknowledged that, upon being advised by counsel, each fully understood the financial information provided by the other, and recognized that their financial circumstances could be considerably different at the time of dissolution of the marriage.

The marriage ultimately broke down, and in August 2012 the husband brought this action for divorce. In her answer, the wife asserts four counterclaims. The first counterclaim seeks a declaration that the entire prenuptial agreement is invalid and unenforceable. The fourth counterclaim seeks rescission of the agreement based on a purported mutual mistake concerning the cost of the apartment the husband was obligated to purchase for the wife. The second and third counterclaims, asserted in the alternative to the first and fourth counterclaims, seek, respectively, declarations that the agreement’s maintenance provisions were unfair when the agreement was executed and are currently unconscionable, and that the agreement’s property distribution provisions were unfair as of the execution date.

The wife moved for partial summary judgment on her first counterclaim seeking a declaration that the entire prenuptial agreement is invalid. The wife argued that the agreement was not enforceable because it was the product of overreaching by the husband that resulted in manifestly unfair terms. In her affidavit in support of the motion, the wife expressly acknowledged that she does not seek to invalidate the agreement based on unconscionability, coercion, duress or fraud. The husband cross-moved for partial summary judgment dismissing the wife’s four counterclaims.

The motion court denied the wife’s motion, and granted the husband’s cross motion to the extent of dismissing the wife’s first counterclaim attacking the validity of the entire agreement and the third counterclaim challenging the property distribution provisions. The court, however, denied dismissal of the wife’s second counterclaim seeking to invalidate the maintenance provisions, and reserved for trial the issues of whether those provisions were fair and reasonable when entered into and whether they are unconscionable today. Both parties now appeal.

The wife, on her appeal, contends that the motion court erred in denying her motion to set aside the prenuptial agreement. The standards for assessing the validity of a prenuptial agreement are well-settled. 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 (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]; Matter of Greiff, 92 NY2d 341, 344 [1998]). 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” (Anonymous v Anonymous, 123 AD3d 581, 582 [1st Dept 2014]).

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 (see Christian v Christian, 42 NY2d 63, 72 [1977]). 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 (id.). 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” (id. at 71-72). The setting aside of a prenuptial agreement is “the exception rather than the rule,” and the burden of establishing fraud, duress or overreaching is on the party seeking to set aside the agreement (Anonymous, 123 AD3d at 582).

Here, the wife’s motion did not challenge the prenuptial agreement on the ground that it is the product of coercion, duress or fraud. Nor did the wife argue that the agreement’s terms as a whole are unconscionable. Rather, her only claim was that the agreement is manifestly unfair due to the husband’s overreaching (see Christian, 42 NY2d at 72). Although no actual fraud need be shown to set aside the agreement on this ground, 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 id.; Stawski v Stawski, 43 AD3d 776, 777 [1st Dept 2007]; Matter of Baruch, 205 Misc 1122, 1124 [Sur Ct, Suffolk County 1954], affd 286 App Div 869 [2d Dept 1955]). In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity’s intervention (see Levine v Levine, 56 NY2d 42, 47 [1982] [to set aside agreement, both overreaching and manifest unfairness must be demonstrated]; Christian, 42 NY2d at 72; Barocas v Barocas, 94 AD3d 551 [1st Dept 2012], appeal dismissed 19 NY3d 993 [2012]; Bronfman v Bronfman, 229 AD2d 314, 315 [1st Dept 1996] [challenger of agreement bears “very high burden” of showing that it is manifestly unfair and that such unfairness was the result of overreaching]).

Judged by these standards, the wife has failed to meet her heavy burden to set aside the prenuptial agreement. No issue of fact exists as to whether the husband engaged in overreaching during the negotiations leading up to the execution of the agreement. The agreement was the product of on and off discussions that took place over the course of more than a year and a half. Although initially the parties negotiated by themselves, about midway through, the wife retained the services of a partner in a prominent matrimonial firm. Negotiations continued by the parties and their attorneys, with draft agreements exchanged and terms modified. Both the fact that the wife was an active participant in the negotiations, and was the one who was pushing to get the agreement signed, are hard to reconcile with her current claim of overreaching.

There is no basis to conclude that the wife did not have sufficient time to review the agreement, or that she did not understand its terms. Although the wife maintains that she suffered from depression and anxiety at the time the agreement was signed, no showing has been made that she lacked the mental capacity to understand the agreement, or that she suffered from a psychological impairment that prevented her from making a reasoned decision. Indeed, the motion court noted that the wife’s counsel, in the papers below, stated that she was not claiming any medical or psychological disability at the time she signed the agreement. In addition, neither of the medical professionals who submitted affidavits expressed the opinion that the wife was incapable of understanding the agreement or the consequences of executing it. And when it came time to execute the agreement, the wife admittedly ignored the advice of her own independent counsel and signed it. In view of all these circumstances, we conclude that no inference of overreaching exists (see Barocas, 94 AD3d at 551-552 [execution of prenuptial agreement not the result of inequitable conduct where, inter alia, agreement was knowingly entered into against counsel’s advice]; Strong v Dubin, 48 AD3d 232, 232-233 [1st Dept 2008] [prenuptial agreement enforceable where, inter alia, counsel told the defendant that the agreement appeared one-sided, and the defendant responded “It’s okay. I just want to get married”]).

The wife complains that she was unaware of the husband’s exact income at the time she executed the agreement. However, the mere fact that the husband did not include his income in his financial disclosure, standing alone, is not a basis to set the agreement aside (see Strong, 48 AD3d at 233 [“A failure to disclose financial matters, by itself, is not sufficient to vitiate a prenuptial agreement”]). Notably, there is no claim by the wife that the husband concealed or misrepresented his income (see id.; Cohen v Cohen, 93 AD3d 506 [1st Dept 2012]). Further, as the motion court noted, the wife lived with the husband and was aware of the luxurious lifestyle his income and assets afforded, even if the precise amount of the income was unknown to her (see Matter of Fizzinoglia, 118 AD3d 994, 996 [2d Dept 2014], affd 26 NY3d 1031 [2015] [record indicates that the petitioner-wife was personally acquainted with the nature of the decedent-husband’s assets before signing the agreement, and there was no indication that the decedent had at any time attempted to conceal or misrepresent the nature or extent of his assets]; Strong v Dubin, 48 AD3d at 233). Moreover, the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed (Smith v Walsh-Smith, 66 AD3d 534, 535 [1st Dept 2009], lv denied 14 NY3d 704 [2010]). Contrary to the dissent’s suggestion that there was inadequate financial disclosure, a statement attached to the agreement lists the husband’s assets, liabilities and net worth, and the wife, who has a degree in economics and has worked in the finance field, specifically acknowledged in the agreement that she fully understood the information provided.

The wife claims on appeal that the agreement was procured through two instances of fraudulent conduct on the husband’s part. At the outset, we note that in her submissions below, the wife explicitly disclaimed that her motion was based on fraud. Thus, her current claims of fraud are not properly before us. In any event, they provide no basis to set aside the agreement. The first alleged fraud centers around the apartment the husband was obligated to purchase for the wife. During negotiations, the parties agreed that the purchase price for the apartment would not exceed 120% of the mean price of a comparable apartment. Due to an apparent typographical error, however, the agreement mistakenly stated “20%” instead of “120%.”

The wife states that she did not notice this error prior to execution of the agreement, but alleges that the husband did and he failed to correct it. The record, however, contains no evidentiary support for these allegations. The husband readily admits that the parties had agreed on the 120% figure and that the agreement contains an error, and acknowledges his present obligation to purchase an apartment within that price range. It is hard to understand how the husband’s alleged conduct would amount to fraud in light of the wife’s acknowledgment that she did not even notice the error (see Lemle v Lemle, 92 AD3d 494, 499 [1st Dept 2012] [“an essential element of fraud is justifiable reliance upon the representations made”]). In any event, even if the husband failed to correct the error before the agreement was signed, the equitable remedy would not be to invalidate the entire agreement, but to require the husband to abide by the 120% cost cap, an obligation he fully accepts.

The wife fares no better with her second claim of alleged fraud, which centers around the inheritance rights contained in the agreement. The agreement provides that, in the event of divorce, the children of the marriage will receive a portion of the husband’s estate, either outright or in trust. The wife alleges that the husband deceptively included the “in trust” language contrary to the parties’ prior understanding. However, the record does not support the wife’s contention that the parties had agreed that the children would receive their inheritance outright. In fact, the parties’ communications on this point addressed only the amount of the inheritance, and not the form in which it would be conveyed. Moreover, it is difficult to understand how this would constitute grounds sufficient to invalidate the agreement. The provision only governs the husband’s financial obligations to his children in the event of his death, and does not involve any issues related to the wife’s financial welfare if the marriage is dissolved during his lifetime.

There is no merit to the wife’s contention that the husband’s behavior during her two pregnancies warrants setting aside the agreement. According to the wife, the husband told her that he would not enter into a prenuptial agreement, and thus would not marry her, until after the birth of their first child. The wife further alleges that the husband told her that he would end their relationship if she terminated her second pregnancy. This Court has held, however, that similar behavior is insufficient to invalidate a prenuptial agreement. For example, in Cohen (93 AD3d at 506), we held that a threat to a pregnant woman to cancel the wedding if she refused to sign the agreement provided no basis to set the agreement aside. Likewise, in Barocas (94 AD3d at 551), we declined to invalidate a prenuptial agreement where the wife believed that there would be no wedding if she did not sign the agreement (see also Weinstein v Weinstein, 36 AD3d 797, 799 [2d Dept 2007]; Colello v Colello, 9 AD3d 855, 858 [4th Dept 2004]). We cannot set aside the agreement here merely because the husband’s repeated refusal to marry his then-pregnant fiancée without a prenuptial agreement might be viewed by some as callous. The wife’s argument that she had no meaningful choice due to the husband’s actions is belied by the fact that she knowingly entered into the agreement against the advice of her counsel (see Barocas, 94 AD3d at 552).

Because the circumstances surrounding the execution of the agreement raise no issue of fact as to whether there was overreaching, we need not inquire into whether the terms of the agreement are manifestly unfair (see Christian, 42 NY2d at 73 [“If the execution of the agreement (is) fair, no further inquiry will be made”]; Barocas, 94 AD3d at 551). However, because the dissent addresses this issue, we note that the wife has also failed to make the requisite showing that the agreement’s terms are manifestly unfair. Under the agreement, the wife is entitled to, in lieu of equitable distribution, the sum of $300,000, along with interest, for each year of the marriage. Further, the agreement provides that all real property and financial accounts in both parties’ names would be equally divided, and other marital property would be divided in proportion to each party’s financial contribution to the asset.

With respect to spousal support, the agreement provided the wife with $12,500 per month until the youngest child reached the age of four. Although there was no provision for a regular monthly payment thereafter, the agreement provided the wife with free luxury housing (including maintenance, utilities and other expenses) until the youngest child turns 18, along with free health insurance during that time. And, if the parties had no living children at the time of the divorce, the husband would be obligated, if the marriage lasted 10 years, to purchase an apartment for the wife in her own name. The agreement also ensured that, if the marriage was intact at the time of the husband’s death, the wife would receive her elective share of his estate. Finally, although not inuring to the wife’s benefit, the agreement provided inheritance rights for the children.

Viewing the parties’ prenuptial agreement in its entirety, it cannot be said that its terms are manifestly unfair. This Court cannot invalidate the agreement merely because the husband has more than enough assets to give the wife additional funds. Although, at the end of the day, a significant financial disparity will exist between the parties to this relatively short marriage, any such inequality is simply not a basis for vitiating their freely-negotiated agreement (see Barocas, 94 AD3d at 551 [upholding agreement where wealthier spouse retained essentially all of the assets acquired during the marriage]). The wife bargained for the benefits she would receive in the event of a divorce, and we decline to undo the agreement merely because she may now, in retrospect, view her choices as having been improvidently made (see Barnes-Levitin v Levitin, 131 AD3d 987, 988 [2d Dept 2015] [“A( ) (prenuptial) agreement will not be overturned merely because, in retrospect, some of its provisions were improvident or one-sided”]; Herr v Herr, 97 AD3d 961, 963 [3d Dept 2012], lv dismissed 20 NY3d 904 [2012] [“(the wife) was fully aware of the rights she was waiving at the time she signed the agreement and, ... an agreement will not be set aside simply because a party relinquished more than the law would have provided”]). Moreover, neither the wife nor the dissent cites to any case in which a premarital agreement has been found to be manifestly unfair where it provides a spouse with the financial benefits the wife is receiving in this case.

Although the dissent concludes that it is premature to rule on the validity of the parties’ prenuptial agreement because there are triable issues of fact, it fails to identify any specific facts that would, under the case law, require invalidation of the agreement after a trial. Contrary to the dissent’s view, our decision upholding the agreement does not turn on the parties’ credibility. Rather, for the purpose of this decision, we accept as true the wife’s description of the circumstances underlying the execution of the agreement, and conclude that her claims do not support a finding of overreaching.

The wife’s description of herself as being in the “precarious position of negotiating as an unmarried mother,” a view impliedly adopted by the dissent, is at odds with the fact that she was represented by experienced matrimonial counsel who negotiated the agreement over an extended period of time. Likewise, the dissent all but ignores the fact that the wife, an educated college graduate, signed the agreement against the express advice of her own counsel. Although the dissent decries the husband’s negotiation style, the fact that he may have modified his initial offers can hardly be seen as overreaching where the wife was represented by counsel, who might have been able to continue negotiations if the wife had followed her advice not to sign the agreement.

In questioning the fairness of the separate property provisions of the agreement, the dissent states that the parties intended the wife to raise the children full-time as a stay-at-home spouse. In fact, the record suggests just the opposite. In the agreement, the wife explicitly acknowledged that in light of her assets, education, employment history, and her rights under the agreement, she is “self-supporting and has sufficient ability to maintain a reasonable and satisfactory standard of living.” Further, the husband’s maintenance obligations, if the parties did not stay together, remained only so long as there is a child under the age of four. This is a strong indicator that the parties intended the wife to return to the workforce when the children started school.

As noted earlier, the husband is obligated to provide a luxury apartment for the wife and children until the last child reaches the age of majority. The dissent finds this provision manifestly unfair because the wife could lose the apartment in the event she decided to give full custody to the husband such that the children would no longer live with her even part of the time. However, the parties voluntarily settled the issue of legal custody and parenting time, and agreed that the wife would have primary residential custody of the children. The dissent engages in pure speculation by suggesting that the parties plan to change their current custody arrangement, or that the children will not be residing at all with the wife going forward.

We do not share the dissent’s view that the terms of a prenuptial agreement are manifestly unfair merely because a party may enjoy a less lavish lifestyle upon divorce than existed during the marriage. It appears that the dissent presupposes that the purpose of a prenuptial agreement is to equitably divide up the parties’ assets, and to maintain the marital standard of living for the lesser-monied spouse. That, however, is the purpose of the statutory scheme (see Domestic Relations Law § 236 [B] [5], [6]), and is not the reason why most prospective spouses enter into prenuptial agreements. We also disagree with the dissent’s position that a prenuptial agreement can be set aside if its terms do not match “the degree of economic interdependence” the parties shared during the marriage. That standard, which the dissent does not support with any case law, could result in the undoing of the vast majority of marital agreements. The dissent fails to recognize that a party may have legitimate reasons for not wanting to give assets to an ex-spouse, regardless of how the couple managed their money during the marriage. For example, in many cases, prenuptial agreements are used to preserve assets so that they are available for children of the current, or a former, marriage.

It goes without saying that premarital agreements often involve substantial financial disparities between the parties, with the more-monied party seeking to protect his or her assets and business interests. If the unequal division of assets, or the failure to maintain the marital lifestyle, were to be the test used to determine validity, it would inevitably result in the setting aside of many, if not most, prenuptial agreements. The criteria focused on by the dissent include some of the statutory factors used to determine equitable distribution and maintenance awards in a contested divorce proceeding, but here the parties decided not to avail themselves of that statutory scheme. We recognize that there comes a point when the imbalance is so extreme that it is appropriate for equity to intervene. This, however, is not such a case.

Contrary to the dissent’s implication, the Court of Appeals’ decision in Christian (42 NY2d 63) does not hold that a prenuptial agreement is manifestly unfair when it does not result in a continuation of the marital standard of living. According to the dissent, that test finds support in Ducas v Guggenheimer (90 Misc 191 [Sup Ct, NY County 1915], affd sub nom. Ducas v Ducas, 173 App Div 884 [1st Dept 1916]), a trial level decision from 1915. Although Christian cited to Ducas, it did so for an entirely different proposition with which we agree — that agreements between spouses involve a fiduciary relationship requiring the utmost of good faith. In no way does Christian support the dissent’s position that prenuptial agreements are manifestly unfair merely because there is an appreciable reduction in the marital standard of living or a significant disparity in the allocation of assets.

Petracca v Petracca (101 AD3d 695 [2d Dept 2012]), a case cited by the dissent, is distinguishable on its facts. In Petracca, the Court set aside a postnuptial agreement where there were gross inaccuracies in the husband’s financial disclosures, and the wife had only a few days to review the agreement, did not understand it, and did not have counsel, all factors not present here. Although the Court also discussed the disparity in the parties’ net worth, it did not establish any bright-line rule mandating the invalidation of marital contracts based solely on financial imbalances. We note too that, unlike here, there is no indication that the wife in Petracca was entitled to distributive payments or free housing and health insurance.

Matter of Greiff (92 NY2d 341), relied upon by the wife, does not require a different result. In Greiff, the Court of Appeals, while affirming the principle that prenuptial agreements are not subject to any special evidentiary burdens, recognized that in “exceptional circumstances,” the special relationship between engaged parties may shift the burden of persuasion to the proponent of the agreement to show freedom from overreaching (id. at 343, 344). In order for the burden to shift, however, the spouse contesting a prenuptial agreement must establish “a fact-based, particularized inequality” and must demonstrate that the “premarital relationship between the contracting individuals manifested ‘probable’ undue and unfair advantage” (92 NY2d at 343, 346). Here, no burden shifting is warranted because, for the reasons already discussed, the wife has failed to show any such inequality or undue and unfair advantage (see Matter of Barabash, 84 AD3d 1363, 1364 [2d Dept 2011]; Strong, 48 AD3d at 232; Matter of Greiff, 262 AD2d 320, 321 [2d Dept 1999], lv denied 93 NY2d 817 [1999]).

We disagree with the concurrence’s view that because the parties were not married at the time the agreement was executed, the manifest unfairness standard set forth in Christian (42 NY2d 63) has no applicability here. In Matter of Greiff (92 NY2d 341), the Court of Appeals spoke of “the unique character of the inchoate bond between prospective spouses — a relationship by its nature permeated with trust, confidence, honesty and reliance” (id. at 347; see also Rosenzweig v Givens, 13 NY3d 774, 775 [2009] [recognizing that a couple can have a fiduciary relationship before marriage]; Robinson v Day, 103 AD3d 584, 585 [1st Dept 2013] [romantic companions of 14 years were in confidential relationship of trust and confidence]; Colello v Colello, 9 AD3d 855, 858-859 [4th Dept 2004] [“(the) defendant had a fiduciary relationship with (the) plaintiff both as her fiancé and as her spouse”]).

Recognizing the nature of this special relationship, courts have specifically applied Christian’s manifest unfairness standard to prenuptial agreements (see e.g. Lombardi v Lombardi, 127 AD3d 1038, 1041 [2d Dept 2015]; Bibeau v Sudick, 122 AD3d 652, 654-655 [2d Dept 2014]). Here, the undisputed facts show that the parties shared a fiduciary relationship. At the time the prenuptial agreement was entered into, the parties were engaged, had been living together for more than three years, had a child together, and were expecting another. Thus, their relationship was “permeated with trust, confidence, honesty and reliance” (Greiff, 92 NY2d at 347) sufficient to make them fiduciaries. We do not share the concurrence’s belief that the husband’s negotiating style and his behavior during the engagement negates the existence of a fiduciary relationship between the parties. That position would make it difficult to ever find a fiduciary relationship between couples with significant assets whose marital agreements are sharply negotiated.

On his appeal, the husband challenges the motion court’s decision to order a trial on the validity of the agreement’s maintenance provisions. Domestic Relations Law § 236 (B) (3) provides that a prenuptial agreement may include provisions governing maintenance provided they “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” (Domestic Relations Law § 236 [B] [3] [3]; see Anonymous, 123 AD3d at 584). For the reasons already discussed, and as the parties explicitly acknowledged in the agreement, the maintenance provisions here were neither unfair nor unreasonable at the time the agreement was entered into (see Barocas, 94 AD3d at 552 [in light of the wife’s knowing and voluntary execution of prenuptial agreement with benefit of counsel, waiver of spousal support was not unfair or unreasonable at time agreement signed]; Markovitz v Markovitz, 29 AD3d 460, 461 [1st Dept 2006] [agreement upheld where, inter alia, the parties represented that they considered the agreement fair]).

Nor are the maintenance provisions unconscionable as applied to the present circumstances. An agreement will be viewed as unconscionable only “if the inequality is so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense” (McCaughey v McCaughey, 205 AD2d 330, 331 [1st Dept 1994] [internal quotation marks omitted]; see also Christian, 42 NY2d at 71 [an unconscionable agreement is one which no person in his or her senses and not under delusion would make on the one hand, and which no honest and fair person would accept on the other]). Judged by these standards, no unconscionability exists. Although the wife is not currently entitled to a specific monthly maintenance payment, she effectively is receiving nontaxable maintenance by way of other benefits provided for in the agreement. She gets a shelter allowance until the children reach majority (i.e., for the next 10 years), in the form of rent-free, expense-free luxury housing, and she is also entitled to, during that same period, free health insurance.

Moreover, under the agreement, the wife, after only five years of marriage, will receive a monetary distribution from the investment account set up and funded by the husband. The value of that account, as of January 2013, was approximately $1.6 million. This amount is in addition to the wife’s listed net worth, as of that same date, of approximately $1.5 million. Thus, the wife will have at her disposal at least $3.1 million in assets, with no housing or health insurance costs, because those costs are being paid by the husband. In addition, although no final child support order had been issued at the time this appeal was heard, the husband has proposed paying $9,000 per month in child support, plus 100% of reasonable child care, health insurance, unreimbursed medical, dental and optical expenses, private school, Hebrew school, tutoring, summer camp, extracurricular activities and college tuition, room and board.

In view of the wife’s current financial circumstances, along with the $1.6 million and other benefits she will be receiving in the future from the husband, it cannot be said that the agreement’s maintenance provisions shock the conscience. The wife is only 37 years old, and has an economics degree from the University of Pennsylvania and prior experience in real estate and finance. In the agreement, she explicitly acknowledged that in light of, inter alia, her education and employment history, she is “self-supporting and has sufficient ability to maintain a reasonable and satisfactory standard of living.” Thus, there is no reason why she cannot in the future reenter the workforce to supplement the benefits she will receive under the agreement.

The husband’s appeal also challenges the court’s award of interim counsel fees to the wife. In a motion sequence separate from the one involving the prenuptial agreement, the husband sought exclusive occupancy of the marital residence, an order setting the amount of his child support obligation, and a protective order limiting further discovery. The wife opposed the motion and cross-moved for exclusive occupancy, temporary child support and an award of interim counsel fees. The affidavits in support submitted by the wife and her counsel made clear that the fee request was not made in connection with the litigation involving the validity of the prenuptial agreement. Rather, the wife sought fees of $30,000 for litigating the current motion sequence as well as $20,000 for unspecified additional legal work purportedly unrelated to issues involving the prenuptial agreement. As relevant here, the motion court granted the wife’s motion and awarded interim counsel fees in the amount of $50,000.

We reject the husband’s contention that the wife’s waiver in the prenuptial agreement of interim and final counsel fees bars any fee award. On appeal, the wife maintains that she is entitled to these counsel fees, which she says were awarded for litigating child-related matters. Because the prenuptial agreement does not cover child-related matters, the waiver does not preclude an award of counsel fees connected to litigating the child support issues raised in the motion (see Vinik v Lee, 96 AD3d 522, 523 [1st Dept 2012]). Likewise, legal fees related to the exclusive occupancy aspect of the motion are recoverable because the heart of that dispute is the children’s best interests, and the place where the children will be living, which are child-related matters. However, because it is not clear what portion of the $50,000 sought is connected to child-related issues, the matter is remanded for further development of the record as to how much of the fee request involves those issues.

We have considered the wife’s remaining contentions and find them unavailing.

Accordingly, the order of the Supreme Court, New York County (Ellen Gesmer, J.), entered October 31, 2013, which, to the extent appealed from as limited by the briefs, denied defendant wife’s motion for partial summary judgment on the first counterclaim, granted plaintiff husband’s cross motion for partial summary judgment dismissing the first and third counterclaims and denied the cross motion to the extent it sought dismissal of the second counterclaim, and granted defendant’s cross motion for interim counsel fees, should be modified, on the law and the facts, to deny the cross motion to dismiss the first and third counterclaims, to declare that the parties’ prenuptial agreement is valid and enforceable, that the agreement’s maintenance provisions were fair as of the date of execution and are not currently unconscionable, and that the agreement’s property distribution provisions were fair as of the date of execution, to deny the cross motion for interim counsel fees, to vacate the award of such fees, to remand the matter for proceedings consistent herewith, and otherwise affirmed, without costs.

. The agreement also provided that if the marriage lasted 10 years, and there were no living issue of the marriage at the time of divorce, the husband would purchase, in the wife’s name, a one-bedroom apartment in the same location and with the same attributes.

. The wife withdrew the fourth counterclaim during oral argument before the motion court.

. Although not in the record on appeal, subsequent motion practice in this Court reveals that, in compliance with his obligation under the agreement, the husband purchased an $8.7 million apartment for the wife and children to live in.

. The wife also complains that her counsel was ineffective for failing to notice both the trust provision and the error about the cost of the apartment. Even if true, that would have no bearing on whether the husband engaged in overreaching. We also reiterate that the wife ignored her counsel’s advice not to sign the agreement.

. Contrary to the dissent’s view, the fact that the wife oversaw the renovations of the apartment in which the parties ultimately resided has no bearing on the parties’ intent at the time the prenuptial agreement was signed. Nor does it call into question the validity of the clear and unequivocal separate property provisions of the agreement.

. We need not decide whether a fiduciary relationship would exist where an affianced couple had little or no relationship prior to executing a prenuptial agreement.

. The concurrence also questions the significance of Christian in light of the subsequent enactment of the Equitable Distribution Law. This argument was not raised by either party on appeal. Moreover, trial and appellate courts throughout the state have consistently applied Christian to marital agreements entered into after the Equitable Distribution Law became effective.

. That statutory provision also makes maintenance provisions subject to the requirements of section 5-311 of the General Obligations Law, which prohibits agreements that relieve either spouse of the support obligation such that the other is likely to become a public charge. Here, there is no claim that the wife runs the risk of becoming a public charge.

. The parties do not challenge on this appeal the court’s determination of the child support, exclusive occupancy or discovery issues raised in the motion.

. Because our decision in Anonymous (123 AD3d 581) was issued after this case was argued, the parties have not addressed the question of whether, despite the waiver, counsel fees for non-child-related matters can be awarded “as justice requires” (id. at 585).

Saxe, J.

(concurring). I agree with the result reached by the majority, and with much of the reasoning of that opinion. I write separately to suggest that the standard enunciated in Christian v Christian (42 NY2d 63 [1977]), relied on by both the majority and the dissent to assess the enforceability of the parties’ prenuptial agreement, is not the correct analytical framework to use when considering prenuptial agreements, especially their property division provisions. Property division provisions of prenuptial agreements may be set aside only on grounds that would warrant the invalidation of any contract.

Facts

The drawn-out process by which Mr. Gottlieb proposed and renegotiated the prenuptial agreement at issue here is fully laid out in my colleagues’ writings, and need not be reiterated at length. It is enough to say that after first insisting on a prenuptial agreement, he then repeatedly reduced his offered terms, then declined to enter into an agreement while Ms. Lumiere Gottlieb was pregnant with the parties’ first child, and only finally acceded to the execution of an agreement when Ms. Lumiere Gottlieb was pregnant with their second child.

The final agreement, executed by Ms. Lumiere Gottlieb against her attorney’s advice, listed Ms. Lumiere Gottlieb’s net worth as $610,817 and Mr. Gottlieb’s net worth as $103,894,476. It limited the property to be treated as marital property as property titled in both parties’ names as joint tenants or tenants by the entirety, along with any property agreed in writing by the parties to be marital property, and defined all other property as separate property, including income earned during the marriage, business interests, and the two apartments Mr. Gottlieb purchased before the marriage. Ms. Lumiere Gottlieb waived any interest in the increase in the value of Mr. Gottlieb’s separate property, along with any rights under the Equitable Distribution Law. The only property distribution provided for by the agreement was that Ms. Lumiere Gottlieb would be entitled to payment of $300,000 for each year of the marriage, plus interest compounded annually at the rate of five percent. Pursuant to the agreement, Mr. Gottlieb was required to deposit sums into an account for this purpose during the marriage. The current value of that account is approximately $1,586,219.

Ms. Lumiere Gottlieb also waived spousal maintenance, except that if any minor children resided with Ms. Lumiere Gottlieb at the time of divorce, during the period in which a child of the marriage was under four years old, Mr. Gottlieb would pay spousal maintenance of $12,500 per month, and except that as long as a minor child resided with her, Mr. Gottlieb agreed to pay the carrying costs and utilities for an apartment (of a specified size, location and type) for Ms. Lumiere Gottlieb until the youngest child attained the age of majority, with all such payments to be treated as child support. Mr. Gottlieb also agreed to provide health insurance for Ms. Lumiere Gottlieb until the emancipation of the parties’ children.

Mr. Gottlieb commenced this action for divorce in 2012, some five years after their marriage. In her answer, Ms. Lumiere Gottlieb interposed four counterclaims, the first seeking to declare the entire prenuptial agreement unenforceable, the second to set aide the maintenance provisions and the third to set aside the property distribution provisions. Her fourth counterclaim concerned an error in a provision about the price of the apartment Mr. Gottlieb agreed to purchase for her and the children.

Ms. Lumiere Gottlieb moved, and Mr. Gottlieb cross-moved, for partial summary judgment on Ms. Lumiere Gottlieb’s counterclaims. Ms. Lumiere Gottlieb contended that, as a matter of law, the prenuptial agreement was unenforceable as the product of overreaching causing manifest unfairness.

The motion court dismissed Ms. Lumiere Gottlieb’s first and third counterclaims, but denied dismissal of her second cause of action, which challenged the enforceability of the agreement’s maintenance provisions. The majority now holds that the dismissal of the first and third counterclaims was correct, and that the second counterclaim should have been dismissed as well. I agree, although for other reasons. The dissent adopts Ms. Lumiere Gottlieb’s suggestion that a prenuptial agreement may be set aside if it is the product of overreaching causing manifest unfairness, and would require a hearing to determine whether to set aside the agreement based on that standard. I strongly take issue with dissent’s analysis and its conclusion.

Discussion

Both the majority and the dissent quote Christian v Christian for the proposition that “[t]o warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching” (id. at 72), relying on that statement to hold that prenuptial agreements may be set aside (1) if they are the product of “overreaching” and, if so, (2) if they are “manifestly unfair.” Unlike my colleagues, I submit that it is not appropriate to look to Christian for the current standard for judging the enforceability of prenuptial agreements’ property division provisions.

There are two important points to recognize about the Christian decision. First, Christian was issued in 1977, so its analysis of this issue must, of necessity, be informed by the provisions of the subsequent Equitable Distribution Law, enacted in 1980, which provides its own approach for judging the enforceability of marital agreement provisions. While the dissent repeatedly characterizes my position as advocating that the statute “supersedes” the Christian ruling, I simply point out that instead of automatically applying the Christian standard, we should recognize that in Domestic Relations Law § 236 (B) (3) — enacted after Christian was decided — the legislature explicitly and implicitly provided standards by which to determine the enforceability of the various components of prenuptial agreements.

Second, Christian was concerned only with separation agreements between spouses, and its reasoning applied only to married couples who enter into separation agreements; it was not intended to apply to not-yet-married, affianced couples, and there is scant support for extending its application in that way.

Domestic Relations Law § 236 (B) (3) creates a different standard than the rule stated in Christian. In contrast to Christian’s requirement of special scrutiny for separation agreements between a married couple, the statute explicitly authorizes and approves of agreements made both before and during a marriage, setting a baseline by which such agreements are deemed valid and enforceable as long as they are “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (id.).

Importantly, while section 236 (B) (3) requires additional scrutiny for particular types of provisions in marital agreements, specifically, maintenance and child-related provisions, the statute makes no provision at all for heightened scrutiny of property division aspects of marital agreements. By imposing a specified heightened standard for support provisions, but not affirmatively imposing any such standard for property division provisions, we may infer, through the principle of expressio unius est exclusio alterius, that the legislature intended not to apply any such heightened standard to property division provisions of marital agreements (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

So, while Domestic Relations Law § 236 (B) (3) sets special standards by which to review maintenance and child support provisions of prenuptial agreements, the absence of a heightened standard in the statute for property provisions indicates that a heightened standard should not be applied when judging property provisions. The Christian analysis, which looks for overreaching and then manifest unfairness, creates a standard similar to the section 236 (B) (3) standard for judging maintenance provisions, with Christian’s “manifest unfairness” component approximating the “fair and reasonable” component of the statute’s maintenance standard, while Christian’s “overreaching” component approximates the (procedural) “unconscionability” prong of the statute’s standard for judging maintenance provisions. Since Christian’s analysis imposes a heightened standard, while section 236 (B) (3) requires that property provisions be judged by ordinary standards for contract enforcement, the use of Christian’s standards for judging property provisions is incorrect.

In insisting that the Christian standard must be employed here, the dissent relies on Goldman v Goldman (118 AD2d 498 [1st Dept 1986]), which does not provide any support for its point. Goldman involved an action to set aside a reconciliation agreement, which is not an agreement to which Domestic Relations Law § 236 (B) (3) applies, so its facts were virtually the converse of the situation presented here, and its use of the analysis provided by Christian v Christian was therefore uniquely appropriate there, as opposed to the circumstances of this appeal.

Even if the Christian pronouncement survived the Equitable Distribution Law, it would have no applicability to prenuptial agreements. It was the spousal relationship of the parties that prompted the Christian Court to explain that “separation agreements subjected to attack are tested carefully” (42 NY2d at 65) and that “a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract” {id. at 72). In support of its premise regarding the special treatment of separation agreements, it quoted a 1889 Court of Appeals decision for the proposition that “ ‘[a] court of equity . . . inquires whether the contract [between husband and wife] was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it’ ” (id. at 65, quoting Hendricks v Isaacs, 117 NY 411, 417 [1889]).

Indeed, when the Court of Appeals has discussed the Christian decision, it has explained that “because of the fiduciary relationship between husband and wife, separation agreements generally 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” (Levine v Levine, 56 NY2d 42, 47 [1982] [emphasis added], citing Christian v Christian, 42 NY2d at 72, and McGahee v Kennedy, 48 NY2d 832, 834 [1979]). Similarly, cases of this and other Departments applying Christian’s standard for setting aside marital agreements on the ground that they are “manifestly unfair to a spouse because of the other’s overreaching” have most often involved agreements between spouses (see e.g. Petracca v Petracca, 101 AD3d 695, 698 [2d Dept 2012] [internal quotation marks omitted]; Kleinman v Kleinman, 289 AD2d 18 [1st Dept 2001], lv denied 98 NY2d 610 [2002]; Gibson v Gibson, 284 AD2d 908 [4th Dept 2001]).

It is the fiduciary nature of the marital relationship that has prompted the law to apply intense scrutiny to separation agreements between married couples. In contrast, the circumstances of unmarried parties who are negotiating prenuptial agreements are virtually the converse of a marital relationship. Typically, a monied prospective spouse, like Mr. Gottlieb here, will refuse to proceed with the marriage unless the non-monied prospective spouse accedes to the proposed terms; that is, the parties will never marry, and therefore never undertake the fiduciary obligations that status entails, unless and until the proposed agreement is signed.

The distinction between how the law treats the two situations is illustrated by the very fact that despite the inherent duress of a threat not to marry unless the proposed agreement is accepted, such a threat does not invalidate a prenuptial agreement (see Barocas v Barocas, 94 AD3d 551 [1st Dept 2012], appeal dismissed 19 NY3d 993 [2012]; Cohen v Cohen, 93 AD3d 506 [1st Dept 2012]).

The differentiation between married spouses and non-married couples for purposes of imposing a fiduciary duty is consistent with the law’s general approach to marriage. As the U.S. Supreme Court recognized in Obergefell v Hodges (576 US —, 135 S Ct 2584 [2015]), marriage fundamentally alters the legal status of the couple, creating new legal rights and obligations that are not present for a non-married couple. Among those rights and obligations is the obligation to give, and the right to receive, the utmost good faith, fairness and loyalty that is the essence of a fiduciary duty.

My colleagues’ view that established law imposes the same fiduciary duty owed in marital relationships on engaged couples entering into prenuptial agreements is not well-founded. I would not rely on Matter of Greiff (92 NY2d 341 [1998]) as does the majority writer, because it is an explicitly narrow ruling; it does not support a broad extension to prenuptial agreements generally of the rule imposing a fiduciary duty on separation agreements between spouses. Unlike Greiff, there is nothing extraordinary about Ms. Lumiere Gottlieb’s challenge to the prenuptial agreement at issue here. And, while there are circumstances in which a non-married romantic relationship may correspond closely enough to a married relationship to make imposition of a fiduciary duty appropriate (see e.g. Rosenzweig v Givens, 13 NY3d 774, 775 [2009]; Robinson v Day, 103 AD3d 584, 585 [1st Dept 2013]), in my view the relationship between these parties at the time they entered into the prenuptial agreement does not present such a situation.

A rule that a fiduciary duty arises by virtue of a couple’s engagement would clearly be unworkable; the mere label and plan to become married in the future, is not enough in itself to create a duty of loyalty. And, barring such a bright-line rule, it would be difficult to pinpoint the moment in time, or particular circumstances that would cause a fiduciary duty to spring into being between fiancés. While some might suggest that having children together should be viewed as a viable basis for imposing a fiduciary duty, it is important to note that the law limits the obligations of unmarried parents to the support and care of the children, and does not impose a duty of support and care toward the partner. By the same token, the law should not be extended to impose a fiduciary duty solely by virtue of a couple’s having children together.

A fiduciary relationship “may arise where a bond of trust and confidence exists between the parties and, hence, the defendant must be charged with an obligation not to abuse the trust and confidence placed in him or her by the plaintiff” (Rocchio v Biondi, 40 AD3d 615, 616 [2d Dept 2007]). The essence of a fiduciary relationship is the expectation that the fiduciary will, and should, b