Plaintiff wife has a decree of separation on the ground of abandonment. There is one child of the marriage, a boy, 17 months old at the time of the commencement of the action. Plaintiff was awarded the sum of $350 per week for permanent alimony and support of the child. In addition, a certain agreement between the parties has, at her instance, been completely invalidated.
No question is raised as to the propriety of the decree of separation. As to the alimony, no question of the ability of the defendant to pay is presented. The criterion for fixing the award therefore becomes the scale of living of the parties during their married life (Borchard v. Borchard, 5 A D 2d 472). The court found this figure to be $21,000. An award of $200 for alimony and $50 for support of the child weekly would be an adequate award under these circumstances.
The parties had entered into a separation agreement prior to the suit. Included in this agreement were mutual waivers by both spouses to share in the estate of the other. The court found that this agreement violated section 51 of the Domestic Relations Law as being a contract to alter or dissolve a marriage. This is not contested. However, the conclusion of the court that this renders void all the covenants of the agreement, including those unrelated to the continued existence of the marriage and for support, is challenged.
We believe the challenge to be well founded. It is well settled that agreements which may not be enforced because they contravene this statute may still contain releases or waivers *469which are enforcible (Hoops v. Hoops, 266 App. Div. 512; Schiff v. Schiff, 270 App. Div. 845; Dworkin v. Dworkin, 247 App. Div. 213). While in all of these cases the agreement violated that part of the statute which prohibits a husband from contracting to relieve himself of support, the rule would apply with equal effect where the bar of the statute applies because the agreement is one to alter the marriage status, namely, to separate. In the only case where there was an objection to the agreement on this ground (Tirrell v. Tirrell, 232 N. Y. 224), the court did avoid a release of dower, but while the balance of the agreement was vitiated because it contravened the statute, this provision was avoided on the express finding that consideration was lacking.
Special Term did not base its conclusion solely on the ground of the statutory bar. It found that the provision was so entwined with the balance of the agreement that it was inseparable and also that the agreement was induced by fraud and overreaching. As to the latter, we find nothing to support it in the record. The only specification of fraud is that defendant failed to reveal the extent of his means. Actually he did more than that. He refused flatly to reveal them. Knowing that and with the benefit of legal advice, plaintiff signed the agreement. Her claim is that she did so in the hope of preserving the marriage — though how an agreement to separate would have this effect is not elucidated. In any event, no fraud or overreaching is involved. As to its being dependent on the other terms of the agreement, it is no more so than in the cited cases. In fact, it is less so. Plaintiff herself enjoys an estate. Defendant’s release of his rights to share in that estate is a distinct and separate consideration, quite apart from the other terms of the agreement. While there are indications that presently the husband’s expectant estate exceeds that of his wife, who knows what the situation will be at the time the respective waivers become effectual?
The judgment should be modified to reduce the alimony to $200 per week for plaintiff wife and $50 per week for the support of the child of the parties, and the first decretal paragraph amended in respect to decreeing the agreement of February 8, 1960 to be void, to exclude therefrom plaintiff’s waiver of her right of election under defendant’s last will and testament; and, as so modified, the judgment should be affirmed, without costs.