DECKOFF v. DECKOFF

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The plaintiff wife contends that the Supreme Court erred in finding, as a matter of law, that the prenuptial agreement in which she waived her right to spousal maintenance was enforceable. We agree. Domestic Relations Law § 236(B)(3) provides that an agreement entered into by the parties with repect to spousal maintenance shall be valid and enforceable provided that the terms thereof "were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of the entry of final judgment". Although this provision does not preclude a court from determining in advance of trial whether an agreement is unconscionable where there is a fully-developed record regarding the parties' current financial circumstances and no material factual disputes (see, Anonymous v. Anonymous, 258 A.D.2d 546; Valente v. Valente, 269 A.D.2d 389), that is not the situation in this case. Accordingly, the issue of whether the wife's waiver of spousal maintenance in the 1993 prenuptial agreement is enforceable should await resolution at trial (see, Niosi v. Niosi, 205 A.D.2d 514).

KRAUSMAN, J.P., H. MILLER, SCHMIDT and CRANE, JJ., concur.