Perry v. Perry

64 A.D.2d 625, 406 N.Y.S.2d 551, 1978 N.Y. App. Div. LEXIS 12410

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1978
• Status: Published

Opinion

In an action to set aside a separation agreement, the plaintiff husband appeals from a judgment of the Supreme Court, Suffolk County, entered September 13, 1977, which, inter alia, (1) dismissed his complaint and (2) awarded the defendant wife a divorce on her counterclaim based upon the parties having lived apart for a period in excess of one year pursuant to the separation agreement. Judgment affirmed, with costs. The parties entered into a separation agreement on June 4, 1975, which had been drafted by one attorney, a friend of both parties. While the practice of one attorney representing both parties in the preparation of a separation agreement has been severely criticized, we agree with the trial court that, in this instance, the attorney managed to preserve neutrality and that the agreement was arrived at fairly, without overreaching by either spouse. Furthermore, the substantive provisions of the agreement itself are, in toto, fair and equitable. Hence, the doctrine that a separation agreement should be rescinded because it was not fair when made has no application (see Christian v Christian, 42 NY2d 63, 71-73; cf. Stern v Stern, 63 AD2d 700). Accordingly, no grounds exist to set it aside. We have considered the other contentions of appellant and find that they lack merit. Latham, J. P., Damiani, Margett and Hawkins, JJ., concur.