An agreement by the parties, made before or during the marriage shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledge or proven in the manner required to entitle a deed to be recorded.
— NY DRL §236B(3)
It seems pretty straightforward: Signatures on a matrimonial agreement need to be acknowledged using the form necessary to record a deed. However, there have been a number of cases in New York involving the issue of whether a signature on a matrimonial agreement met that requirement. Recently, the New York Court of Appeals again addressed this issue.
In Galetta v. Galetta (2013 Slip Op 387), the agreement in question was a prenuptial agreement entered into by the parties shortly before the marriage took place in 1997. The agreement was prepared by the prospective husband’s lawyer, and the prospective wife did not have a lawyer. The terms of the prenuptial agreement provided that each party’s separate property, set forth on attached lists, would not be subject to equitable distribution in a divorce, but would remain his or her separate property and that neither party would look for maintenance from the other.
In 2012, the husband commenced an action for divorce. The wife then started her own action for divorce and made a motion for summary judgment for declaratory relief, claiming that the prenuptial agreement was invalid because of a defective acknowledgment of the husband’s signature. The husband claimed that the agreement was valid because the language in the acknowledgement “substantially complied” with the requirements of New York Real Property Law regarding the acknowledgment necessary to record a deed. The Fourth Department Appellate Division agreed with the husband, and the wife appealed to the Court of Appeals.
The Court of Appeals pointed out that, “the acknowledgment requirement imposed by Domestic Relations Law §236B(3) is onerous and, in some respects, more exacting than the burden imposed when a deed is signed. Although an unacknowledged deed cannot be recorded … it may still be enforceable between the parties to the document. The same is not true for a nuptial agreement which is unenforceable in a matrimonial action, even when the parties acknowledge that the signature are authentic and the agreement was not tainted by fraud or duress,” (citing Matisoff, 90 N.Y.2d 127 )
The court then turned to whether the certificate of acknowledgment of the husband’s signature was defective, stating, “The purpose of the certificate of acknowledgment is to establish that these requirements have been satisfied: 1) that the signer made the oral declaration compelled by Real Property Law §292; and 2) that the notary or other official either actually knew the identity of the signer or secured ‘satisfactory evidence’ of identity ensuring that the signer was the person described in the document.”
The court noted that when the parties signed the agreement in 1997, “proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: ‘Before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same.’”
However, in the certificate of acknowledgment for the husband’s signature the “to be known and known to me” language was left out. The court stated that, “absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that the was the person described in the prenuptial agreement,” pointed out a long history holding such a flaw to be defective, and found the certificate did not meet the statutory requirements.
Next, the court addressed the issue of whether the defect could be cured, and, “if so whether the affidavit of the notary public … was sufficient to raise a question of fact precluding summary judgment in the wife’s favor.” The court found that the total absence of an acknowledgment cannot be cured.
However, in Galetta there was an acknowledgement, just one lacking the “known” language, and the court thought it likely the omission was “a typographical error” and that the “prerequisites of an acknowledgment [may have] occurred but the certificate simply failed to reflect that fact.”
The court avoided resolving whether a cure is actually possible — by finding that “the proof submitted here is insufficient.” In his affidavit, “the notary public did not state he actually recalled having acknowledged the husband’s signature nor did he indicate he knew the husband prior to acknowledging his signature.” Also, “the notary had no independent recollection” of asking and confirming the person who signed the agreement was the husband, but said that to do so was “his custom and practice” and he was “confident” he had done that with the prenuptial agreement.
The court found that “the averments presented by the notary public in this case are too conclusory” to fall in the narrow “custom and practice” exception allowed in case law to fill in evidentiary gaps.
This case is worth reading for the careful “slicing and dicing” of this issue. It is worth keeping just in case you ever come across the acknowledgment problem.
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.