Articles Posted in Marital agreements

tombTo the State of New York, a marriage is a civil arrangement between two people to live together, support one another, share property, and possibly raise children. This view of marriage may lack romance, but it effectively addresses the needs of a diverse population. Marriage remains deeply connected to religious faith and practice for many people, and a particular religious tradition may have rules regarding marriage and divorce that differ from state law. This raises the question of how New York courts might address disputes of a religious nature. The short answer is that they do not adjudicate these disputes, except to the extent that participation in a religious procedure is part of a pre- or post-marital agreement, or that one or more elements of a religious procedure violate the law or public policy.

New York expressly defines marriage as a “civil contract” in the Domestic Relations Law (DRL). Both parties to a marriage must be “capable in law of making a contract,” and they must give their consent. The DRL does not prescribe any particular procedure for solemnizing a marriage, so couples are largely free to use whichever religious practice, secular procedure, or completely-made-up ceremony they want. The law mostly does not concern itself with the exact manner in which a couple gets married, as long as they meet the basic requirements.

Divorce in New York is also a civil matter, at least as far as the courts are concerned. The DRL requires parties to resolve issues related to property distribution, support and maintenance, and child custody. A spouse who wants to follow religious procedures during their divorce can get some support from the court, but only if the spouses signed a marital agreement stating that they would use those procedures. The court can enforce the agreement by ordering the other spouse to participate. These procedures often involve arbitration based on religious law, and the civil courts can also confirm—or reject—arbitration awards.

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agreementCertain types of contracts can have a significant impact extending beyond the individual parties who signed the actual document. New York law therefore requires certain procedures to ensure not only that a signature is authentic but also that the signer is acting with some minimal amount of forethought. State law establishes multiple requirements for documents that convey interests in real property, such as deeds. New York’s Domestic Relations Law (DRL) has adopted these requirements for pre- and post-marital agreements. A court in Westchester County considered a challenge to the validity of a premarital agreement this summer. Its ruling in BW v. RF reviews the DRL’s requirements regarding the signatures on a marital agreement and the reasons for those requirements.

Section 236B(3) of the DRL states that marital agreements are “valid and enforceable in a matrimonial action” if they meet two essential requirements. First, the agreement must be in writing. That is the easy part. Second, the agreement must be “acknowledged or proven” in the same manner required for a recorded deed. This is where complications can occur.

Before being recorded, a deed must be “duly acknowledged” by the person signing it. This requires signing the document before a notary public or another authorized official, as well as orally stating that they have signed it. The notary or other official must have “satisfactory evidence” that the person signing the document is the same person described in the document, and they must sign a “certificate of acknowledgment” stating that they have complied with all of the statutory requirements. State law provides a uniform certificate of acknowledgment for this purpose.

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mansionSometimes, albeit rarely, a family law dispute in New York does not center on the dissolution of a marriage but on a disagreement over whether a marriage exists at all. A Manhattan court recently considered a plaintiff’s request for a declaration that his marriage was valid. Alternatively, he asserted several fraud-based claims against the woman he claimed he had married, who denied being his wife. In a ruling earlier this year in Jackson K. v. Parisa G., the court denied the alleged wife’s motion to dismiss, allowing the case to move toward trial.

Some states, not including New York, allow people to get married without a marriage license, commonly known as “common-law marriage.” Under New York’s Domestic Relations Law, a couple must obtain a marriage license from a town or city clerk and provide it to the “clergyman or magistrate” who will perform the marriage ceremony. A marriage without a license is valid, however, if it was “solemnized between persons of full age.” A “clergyman or minister,” as defined by state law, may solemnize a marriage, as may a judge or various other public officials. The marriage ceremony is not required to follow any particular form, as long as the spouses-to-be “solemnly declare” their intention to marry in front of the officiant and witnesses.

The Jackson K. case, as presented by the court, shows numerous features commonly associated with a wedding but fewer features of a marriage. The plaintiff and the defendant “entered into a romantic relationship” in 2006, having known each other since they were children. They moved in together in 2007, and in 2009 the plaintiff asked her parents’ permission to marry her. He purchased a $25,000 engagement ring with the help of the defendant’s mother.

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By Jérôme Dessommes - ÉCRIVAINS CONSULT® (ÉCRIVAINS CONSULT®) [CC0], via Wikimedia CommonsNew York marital law allows spouses to enter into agreements, before or during the marriage, with regard to issues like characterization of marital property, distribution of marital property upon separation or divorce, maintenance and child support payments, and more. A spouse or ex-spouse may ask a court to rescind all or part of an agreement in some situations, such as fraud or duress at the time of signing, or changed circumstances that would make enforcement of the agreement at the present time unconscionable. Two recent New York court decisions address possible grounds for setting aside an agreement.

In Lombardi v. Lombardi, the New York Appellate Division, Second Department considered a wife’s lawsuit, filed separately from her divorce action, against her husband to rescind a marital agreement. The Supreme Court dismissed the suit on a motion for summary judgment, but the Appellate Division partly reversed this order.

The appellate court found that summary judgment was improper on three claims, beginning with a claim for fraudulent inducement against the husband. It held that the husband’s defense relied on a general merger clause that would not preclude a claim for intentional fraud. It also held that, while the husband argued that the wife was represented by counsel, this alone would not defeat a claim of fraud. Furthermore, it found that the husband’s own submissions raised a “triable issue of fact” as to whether the wife actually was represented at the time.

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carl dwyer [FreeImages.com Content License (http://www.freeimages.com/license)], via FreeimagesA divorce under the laws of the state of New York requires the parties to resolve multiple issues, either by mutual agreement or by submitting the matter to the court to decide, before the court can enter a final judgment of divorce. Many parties are able to agree to the terms of their divorce, including equitable distribution of property and matters pertaining to any minor children. They can present this agreement to the court as a “stipulation of settlement” (SOS). Two recent decisions, Defilippi v. Defilippi and Jon v. Jon, address motions brought by a former spouse, after the entry of a final judgment of divorce, to rescind an SOS.

The parties in Defilippi negotiated a settlement and signed a written SOS in December 2013. They submitted it to the court in March 2014. The husband did not raise any objections at the time, and the judge signed it. The SOS distributed the parties’ property and debts, provided joint legal custody of the parties’ three minor children, and established the husband’s child support obligation.

According to the court, the husband complied with the provisions of the SOS, with some arrearages, for almost a year. He did not file an appeal or move to vacate the judgment of divorce, but in March 2015, he filed suit seeking to set aside the SOS as void. He claimed that the SOS did not meet the requirements for the correct form of an agreement under § 236(B)(3) of the New York Domestic Relations Law because it did not include acknowledgments “in the manner required to entitle a deed to be recorded.”

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new-home-for-saleWith any marital settlement agreement, it is essential to understand the details of each provision in the agreement with specificity. In one recent case, this concept was on full display when a former wife was unable to persuade the Appellate Division that her daughter’s intermittent college attendance was enough to trigger a provision in the couple’s stipulation of settlement that would have delayed the sale of the couple’s marital residence, where the former wife resided.

The dispute stemmed back to Albert Eckman and Christina Eckman’s stipulation of settlement in their 1992 divorce. The stipulation outlined many post-divorce procedures, including spelling out one for the sale of the couple’s marital residence. The stipulation stated that the sale would not take place until all of the couple’s children were emancipated. The document then went on to define emancipated as turning age 21, but it carved out an exception for a child over age 21 who was “diligently pursuing” graduate or post-graduate studies.

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