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[47 A.D.2d 801 Page 801] Judgment unanimously reversed on the law and facts, without costs, and a new trial granted. Memorandum: Plaintiff appeals from a judgment dismissing her complaint for a divorce based upon the cruel and inhuman treatment of defendant, granting defendant's counterclaim for divorce based upon the parties living separate and apart for one year pursuant to a separation agreement and denying her alimony. Defendant failed to prove a prima facie case by establishing that the separation agreement complied with statutory requirements (Domestic Relations Law, § 170, subd. [6]) and also because the action was governed by the two-year requirement of the prior statute rather than the more liberal requirements of the 1970 amendment (L. 1970 ch. 835, § 4). Since the agreement was executed in 1970, it appears that this error may be corrected by the proof and amendment of the pleadings. Furthermore, while plaintiff's proof of cruel and inhuman treatment was not fully developed, the record indicates that she possessed evidence which may have entitled her prima facie to a divorce but her proof and defendant's contradictory proof were improperly circumscribed by the court. We agree with the trial court that the separation agreement was not voidable because of defendant's alleged duress or his coercion of plaintiff to sign it. However, we hold that it was void because contrary to public policy. The agreement directed payment of a lump-sum settlement to plaintiff by defendant and made no provision for her continuing support. The trial court held that this agreement foreclosed her claim to alimony at the time of trial. Section 5-311 of the General Obligations Law provides that a husband and wife may not contract to relieve a husband from his liability to support his wife. Agreements which attempt to do so by providing for lump-sum payments rather than measuring the amount of support required are void (Haas v. Haas, 298 N.Y. 69, 72; Kyff v. Kyff, 286 N.Y. 71, 74; [47 A.D.2d 801 Page 802]

Professional & Technical
March 6
LawApp Publishers

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