Fair Haven, NY Divorce Law Firms & Lawyers

Your pension is a marital asset to the extent it was earned during marriage. She is entitled to an equitiable share of that, which is generally an equal share.

The document that you are referring to is essentially a postnuptial agreement.  In such an agreement, you and your spouse could agree to a waiver of your pension rights.  The agreement must not be so one-sided though as to be unfair to your spouse. In the case of O'Malley v. O'Malley in the Second Department of New York, the Courts have set forth the law governing such agreements and unfairness.  Postnuptial agreements are contracts which require consideration. Although postnuptial agreements are generally subject to ordinary principles of contract law, the parties, as husband and wife, have a fiduciary relationship to each other  "To 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" Where the agreement appears to be so one-sided and unfair that no rational person exercising common sense would make it, and no fair and honest person would accept it, there should be a hearing to determine whether the agreement is unconscionable in substance. Further, the circumstances under which the agreement was executed must be examined. A reviewing court examining a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of the circumstances  Without a hearing to determine the totality of the circumstances, including the extent of the parties' assets, and the circumstances surrounding the execution of the agreement, it cannot be determined on this record whether or not equity should intervene to invalidate the parties' agreement. Great care should be taken in the drafting of any agreement, the disclosure of assets and income and the totality of the circumstances surrounding such an agreement.  An experienced attorney in your area should be consulted before engaging in any further action regarding this matter. - Alfred Polizzotto, III