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D''Onofrio v. D''onofrio

Decided: April 3, 1985.

CARLOTTA D'ONOFRIO, PLAINTIFF-APPELLANT,
v.
STEPHEN G. D'ONOFRIO, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Chancery Matrimonial Division, Ocean County.

McElroy, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff has appealed from a divorce judgment incorporating the terms of an antenuptial agreement. The issue was severed and specially referred to a judge who rendered a decision finding the agreement legal and binding. A court order to that effect was entered over a year prior to the divorce hearing.

In this appeal plaintiff contends that the antenuptial agreement was void in that it was inequitable, grossly unfair and unconscionable. She also argues that even if the agreement is not void, it is subject to modification based upon changed circumstances. Plaintiff's remaining claims assert that the denial of an alimony award was error, as was the requirement that defendant need pay only $3,500 of her counsel fees.

Plaintiff and defendant lived together for several years prior to their marriage and their only child, Stephanie, was born to them in 1967. They were married on June 22, 1971 shortly after they signed a "Prenuptial Agreement" prepared by defendant's attorney who advised plaintiff that she should have independent legal representation; however, such representation was waived. The agreement by its terms barred plaintiff from claiming any right, including a dower right, to all real estate owned by defendant and any right to his personal property "in the event the marriage for any cause or in any manner during the lifetimes of the parties terminates or is annulled." Plaintiff also appointed defendant as her attorney-in-fact. The consideration for the agreement was both the marriage and the payment of $1,000 to plaintiff evidenced by defendant's note against which payments were to be made into a savings account to be opened in her name at a local bank. These payments were made. The agreement further represented that defendant "has a substantial estate consisting principally of realty, and [plaintiff] is without a substantial estate of either realty or personalty." The parties further acknowledged "that the monetary value to be received by [plaintiff] hereunder is or may be

out of all proportion to that to which as a wife she would be entitled."

The proofs further showed that plaintiff fully understood the effect of this agreement, and about the time it was signed even explained to one of her friends that she had to give up all rights to defendant's property if she wanted to marry him. Significantly, the agreement did not deal with an award of alimony.

On October 27, 1982 the specially-assigned judge entered an order finding that plaintiff received the $1,000 consideration, entered into the agreement with "full understanding of all relevant facts" and had been dealt with fairly after full disclosure of such facts prior to the execution of the agreement. Thus he found the agreement "to be a legal and valid agreement, binding upon the parties."

I

This appears to be the first New Jersey appellate case presenting for adjudication the enforceability of an antenuptial agreement in a divorce action under New Jersey law.*fn1 Cf. Kelso v. Kelso, 96 N.J. Eq. 354 (E. & A. 1924) (enforcing such agreement against a husband's claim that transfers made pursuant thereto constituted an improvident gift); Smith v. Executors

of Moore, 4 N.J. Eq. 485 (Ch.1845), aff'd sub. nom. Moore v. Smith, 5 N.J. Eq. 649 (E. & A. 1847) (enforcing antenuptial agreement in estate proceedings); Chaudry v. Chaudry, 159 N.J. Super. 566 (App.Div.1978) (involving interpretation of an agreement executed in accordance with the customs and usage of Pakistan and, thus, found effective in New Jersey); Fern v. Fern, 140 N.J. Super. 121 (App.Div.1976) (prenuptial agreement found to terminate on death and not to be intended by the parties ...


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