Van Kipnis v. Van Kipnis

Kavanagh, J. (dissenting).

Two facts are not in dispute in this otherwise particularly contentious matrimonial litigation. First, the parties never intended that this “Contrat de Mariage” executed in France more than 40 years ago would serve as an enforceable prenuptial agreement. The husband acknowledges as much and has given sworn testimony that he never believed that this document “had relevance in a divorce proceeding.” As such, there is no ambiguity here—the parties’ intent is not in question since neither ever intended that this document would define the distribution of their marital assets—and that leads to the second fact upon which we all agree. If this document is given a legal vitality that neither party ever envisioned or expected, it will lead to an unfair, even unconscionable distribution of assets accumulated during the marriage. It will be a windfall for the husband and will effect a result that is neither consistent with either party’s understanding or with the laws of this State that govern the equitable distribution of marital assets. I would therefore reverse the order that this document is an enforceable prenuptial agreement and equitably distribute the parties’ assets.

Friedman, J.E, Nardelli and Catterson, JJ., concur with Gonzalez, J.; Kavanagh, J., dissents in a separate opinion.

Judgment, Supreme Court, New York County, entered January 26, 2006, affirmed, without costs.