LAW AND THE FAMILY
"OPEN COURT STIPULATIONS IN MATRIMONIAL AGREEMENTS"
New York Law Journal
May 23, 2000
By Joel R. Brandes
Provisions of state law, if literally applied, would appear to foreclose the
possibility of a less-formal agreement qualifying to serve in lieu of equitable
distribution in case of divorce. However, when construed in the light of
legislative purpose, and in pari materia with CPLR 2104, most courts, to
date, have held that a stipulation on the record in open court may serve in
lieu of the prescribed formalities.
Some of the above-mentioned provisions include the following:
Domestic Relations Law, 236B)(3), which governs matrimonial agreements. It
provides, in part:
Agreement of the parties. 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 acknowledged or
proven in the manner required to entitle a deed to be recorded. Such an
agreement may include (1) a contract to make a testamentary provision of any
kind, or a waiver or any right to elect against the provisions of a will; (2)
provision for the ownership, division or distribution of separate and marital
property; (3) provision for the amount and duration of maintenance or other
terms and conditions of the marriage relationship, subject to the provisions
of section 5-311 of the general obligations law, and provided that such
terms were fair and reasonable at the time of the making of the agreement and
are not unconscionable at the time of entry of the final judgment; and (4)
provision for the custody, care, education and maintenance of any child of
the parties, subject to the provisions of section two hundred forty of this
chapter. Nothing in this subdivision shall be deemed to affect the validity
of any agreement made prior to the effective date of this subdivision.
New York Civil Practice Law 2103 governs stipulations made between the parties
to an action or proceeding. It provides:
Stipulations. An agreement between parties or their attorneys relating to
any matter in an action, other than one made between counsel in open court,
is not binding upon a party unless it is in a writing subscribed by him or
his attorney or reduced to the form of an order and entered.
After reading those provisions, to be valid, and to serve in lieu of equitable
distribution, one concludes that a matrimonial agreement must be in writing,
subscribed by the parties, and acknowledged or proven in the manner required to
entitle a deed to be recorded. [FN1]
The provisions appear to prevent less-formal pacts from qualifying to serve
instead of equitable distribution. But, as said above, most courts have held
that a stipulation in open court may bypass formalities.
To illustrate some case law on the subject we have the following: the
Appellate Division, First and Second Departments, [FN2] have sustained the
validity of stipulations in lieu of formal agreements, but the Third and Fourth
Departments have failed to do so. [FN3]
In Matisoff v. Dobi, [FN4] the Court of Appeals held that a written
postnuptial agreement that was signed by the parties but not acknowledged is
unenforceable. Plaintiff and defendant were married on April 13, 1981. Because
of defendant's two prior unsuccessful marriages, plaintiff wished to protect
her real property and other assets in the event that their marriage failed.
Thus, at plaintiff's urging, the parties entered into a postnuptial agreement
one month later.
The agreement provided that the parties waived any rights of election pursuant
to the Estates, Power and Trusts Law, "and other rights accruing solely by
reason of the marriage" with regard to property presently owned or subsequently
acquired by either party. It specified that "neither party shall have nor shall
such party acquire any right, title or claim in and to the real and personal
estate of the other solely by reason of the marriage of the parties." The
agreement was drafted by an attorney friend of plaintiff and signed by both
plaintiff and defendant. The document was not acknowledged by the parties or by
The divorce action was commenced on Sept. 17, 1992. Defendant sought to
enforce the postnuptial agreement as a bar to any claim of entitlement by
plaintiff to his property acquired before or during the marriage. Plaintiff
contended that the agreement was invalid because it was not acknowledged as
required by Domestic Relations Law 236(B)(3). Both parties testified at
trial that they had signed the agreement, and neither made any allegation of
fraud or duress.
The Supreme Court deemed the agreement unenforceable, concluding that
admissions by the parties, during a divorce trial 13 years later, that the
signatures on the agreement were genuine, aided to validate the unacknowledged
agreement. The Appellate Division reversed, with one Justice dissenting. It
concluded that the terms of the postnuptial agreement "were acknowledged and
ratified in the daily activities and property relations of the parties
throughout the marriage.''
The Court of Appeals determined that, in these particular circumstances, the
agreement was contrary to the plain language of Domestic Relations Law
236(B)(3), which recognizes no exception to the requirement of formal
acknowledgment. It therefore reversed, holding that the requisite formality
explicitly specified in Domestic Relations Law 236(B)(3) is essential. The
agreement was concededly unacknowledged and, therefore, did not comply with the
terms of Domestic Relations Law 236(B)(3).
Defendant argued that literal compliance with the statutory requirement of
acknowledgment is not required so long as the purpose of that requirement is
satisfied. The Court of Appeals held that the unambiguous statutory language of
236(B)(3), its history and related statutory provisions, establish that the
Legislature did not mean for the formality of acknowledgment to be expendable.
The court noted that Domestic Relations Law 236(B)(3) and the Real Property
Law do not specify when the requisite acknowledgment must be made and that it
was unclear whether acknowledgment must be contemporaneous with the signing of
the agreement. It pointed out that while it has affirmed determinations
allowing parties to provide the requisite acknowledgment under similar
statutory requirements at a later date, it noted that it had never directly
addressed the question whether and under what circumstances the absence of
acknowledgment can be cured and decided that it need not resolve this issue.
It held that even assuming, without deciding, that the requisite
acknowledgment could be supplied at the time of the matrimonial action, each
party's admission in open court that the signatures were authentic did not, by
itself, constitute proper acknowledgment under 236(B)(3).
The statute prescribes acknowledgment "in the manner to entitle a deed to be
recorded." This requires both that an oral acknowledgment be made before an
authorized officer and that a written certificate of acknowledgment be
attached (see, Real Property Law 291, 306). As the Court explained, "[a]n
instrument is not 'duly acknowledged' unless there is not only the oral
acknowledgment but the written certificate also, as required by the statutes
regulating the subject." Because no proper certificate of acknowledgment was
attached to the agreement, the court held that the postnuptial agreement was
The Court of Appeals held that the DRL 236(B)(3) requires the invalidation
of any nuptial agreement not acknowledged in the manner of a recordable deed.
Recognizing that such a "bright line" rule might produce harsh results, the
Court nonetheless expressed the view that it was of paramount importance that
the enforceability of nuptial agreements be consistent and predictable and,
accordingly, held that the validity of such agreements should not be made to
depend upon subsequent fact-sensitive inquiries respecting the parties'
original motivations or their postcontractual economic relations during
A literal reading of Matisoff would lead to the inescapable conclusion that
open court stipulations are not valid and enforceable agreements within the
meaning of DRL 236(B)(3). Not so!
Recently, in Nordgren v. Nordgren, [FN5] an action for a divorce and ancillary
relief, the plaintiff wife appealed from an order of the Supreme Court which
denied her motion to vacate the parties' stipulation of settlement. The
Appellate Division affirmed. The plaintiff contended that the parties'
stipulation had to be vacated because it was not reduced to a writing, signed
by the parties and acknowledged. The court noted that CPLR 2104 provides
that, other than an agreement between counsel in open court, an agreement
between parties or their attorneys relating to any matter in an action is not
binding unless it is in a writing subscribed by the party or his or her
attorney or reduced to the form of an order and entered. It found that the
agreement was made in open court between counsel with the parties present.
Therefore, there was no necessity that it be reduced to a writing and signed.
It stated that to the extent that the plaintiff relied upon Matisoff v. Dobi to
support her position, "there is nothing in Matisoff v. Dobi, 90 NY2d 127,
which indicates that the Court of Appeals intended to abrogate the well-settled
law of Rule 2104 of the Civil Practice Law and Rules.''
And, in Charland v. Charland, [FN6] the Third Department appears to have
relaxed its restrictive rule. In Charland, immediately prior to commencement of
trial in April 1997, defendant withdrew his answer, permitting plaintiff to
obtain a divorce on the ground of cruel and inhuman treatment.
A trial commenced as to the remaining issues, with the parties
stipulating to the terms of the Family Court custody order, to child support
and to the value of all marital assets and liabilities except the marital
residence and defendant's corporation. Supreme Court thereafter rendered a
written decision upon the issues of custody, child support, maintenance and
equitable distribution. Defendant appealed from the judgment entered thereon.
The Third Department rejected defendant's assertion that reversal was mandated
because the Supreme Court's determinations as to custody, child support and
equitable distribution improperly relied on certain stipulations by the parties
which did not conform to the requirement of Domestic Relations Law 236(B)(3)
in that they were not "in writing, subscribed by the parties, and acknowledged
or proven in the manner required to entitle a deed to be recorded."
It found this assertion to be without merit, stating: "The requirements of
Domestic Relations Law 236(B)(3) pertain to stipulations which effect the
equitable distribution of marital property (see generally, Matisoff v. Dobi,
90 NY2d 127, lv. denied 91 NY2d 805).
Here, the parties' stipulations related to the value of certain marital
property (and debt); equitable distribution, which was determined by the court;
custody; and the manner in which child support was to be calculated. As such,
their stipulations were not marital agreements within the meaning of
Domestic Relations Law 236(B)(3), but rather agreements by the parties,
through their counsel in open court, within the purview of CPLR 2104.
FN(1) Dom. Rel. L. 236, Part B, subdiv 3.
FN(2) Sanders v. Copley, (1989, 1st Dept.) 151 App Div 2d 350, 543 NYS2d 67;
Harrington v. Harrington, (2d Dept) 103 AD2d 356, 479 NYS2d 1000. See also,
Josephson v. Josephson, 121 Misc.2d 572, 469 NYS2d 285.
FN(3) Lischynsky v. Lischynsky, (3d Dept) 95 AD2d 111, 466 NYS2d 815 and
Hanford v. Hanford (4th Dept.) 91 AD2d 829, 458 NYS2d 418.
FN(4) 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376.
FN(5) AD2d , 695 N.Y.S.2d 588 (2d Dept.,1999).
FN(6) 1999 WL 1126799 (N.Y.A.D. 3 Dept.).
Joel R. Brandes has law offices in Garden City and New York City. He co-
authored the nine-volume Law and the Family New York and Law and the Family New
York Forms (both, published by Westgroup). Bari R. Brandes, a member of the
firm, co-authors the Annual Supplements to Law and the Family New York 2d and
assisted in the preparation of this article.
5/23/2000 NYLJ 3, (col. 1)
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