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We
continue herein our discussion of New York’s public policy and its
effects on the validity of separation agreements.
No Exceptions
While it appears that the language in General
Obligations Law § 5-311 exempts from its reach separation agreements
that comply with Domestic Relations Law § 236 (B) when it says, "Except
as provided in New York Domestic Relations Law § 236," the exception is
illusory.
Domestic Relations Law § 236 (B)(3), which
became law on July 19, 1980, provides, among other things, that an
agreement by the parties, made before or during the marriage, may
include: 1) a contract to make a testamentary provision of any kind, or
a waiver of 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 § 5-311 of the general obligations law,
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 final judgment; and 4) provision for the custody, care, education and
maintenance of any child of the parties, subject to the provisions of §
240. DRL § 236 (B)(3).
So Domestic Relations Law § 236 (B)(3) still
requires that the "provision for the amount and duration of maintenance
or other terms and conditions of the marriage relationship" remain
"subject to the provisions of section 5-311 of the general obligations
law." A husband and wife therefore remain unable to contract to "alter"
the marriage, "dissolve" the marriage or relieve one another of
responsibility to support each other in the "public charge" situation.
General Obligations Law § 5-311 has never been construed to prohibit
husbands and wives from making a contract to make a testamentary
provision of any kind, or a waiver of any right to elect against the
provisions of a will. Nor has it been construed to prohibit them from
making provisions for the ownership, division or distribution of
separate and marital property, or from providing for the custody, care,
education and maintenance of any child of the parties.
Agreement Void if No Separation Occurs
In New York today, a separation agreement is
void, as against public policy, if the parties are living together at
the time of making the agreement and never subsequently separate. One
example of the application of this policy can be found in Garlock v.
Garlock, 279 N.Y. 337 (1939). There, the husband and wife entered into
an agreement, which recited that they resided together and that the
husband would thenceforth pay the wife $15,000 per year during her
lifetime, in equal monthly installments of $1,250. The agreement stated
that the wife was to use these funds for her support and maintenance,
and that these payments were in lieu of and in release of any and all
obligations the husband had to support the wife. When the husband failed
to pay a monthly installment of $1,250, the wife brought an action to
recover the sum. The wife’s attorney’s reply affidavit stated that the
agreement was drawn up after a conversation with the husband, who stated
that, while the parties were happily married, they wanted to reduce to a
stated sum the amount the husband should provide his wife each year for
her support and maintenance. Special Term dismissed the complaint on the
ground that the contract was void, and the Court of Appeals agreed. It
pointed out that marriage is a relationship established according to
law, and that under that law the husband has the duty to support and
maintain his wife in conformity with his condition and station in life.
Allowing him to contract his duties away would be contrary to public
policy. Conversely, where the parties have separated, contracts similar
to that in Garlock are legal. See, e.g., Winter v. Winter, 191 NY 462
(1939).
The rule, however, is not ironclad, and the
validity of a separation agreement may be sustained, even though
executed at a time when the parties were living in the same household,
where it appears that an immediate separation was contemplated and in
fact occurred. Thus, an agreement to separate executed while the parties
are living together is only contrary to public policy and void if the
separation does not take place within a reasonable time. Markowitz v.
Markowitz, 52 AD 521 (1st Dept. 1976). Additionally, a separation
agreement will sometimes be found valid even if the husband and wife
continue to reside in the same home. In Sepenoski v. Sepenoski,188 AD2d
457 (2d Dept. 1992), the Second Department held that the fact that the
husband and wife lived in the same house for four years after their
separation agreement was executed was not sufficient to vitiate it where
they were not living together as husband and wife, did not engage in
sexual relations, and the wife received a salary for working on the
family farm.
Abandoning the Agreement
A reconciliation after the separation agreement
has been made will vitiate it, but the definition of "reconciliation" in
this context is one that the courts have often had to grapple with. If a
reconciliation is accomplished, the paying spouse’s duty under the
agreement to make payments for the support of the other spouse and their
children terminates; it is replaced by his or her general obligation, in
accordance with New York public policy, to provide the support that the
marriage contract imposes. Blumenthal v. Blumenthal, 194 Misc 322
(1944).
Cohabitation in and of itself does not abrogate
or make a separation agreement invalid; there must be an intent to
reconcile. Markowitz v. Markowitz, 52 AD 2d 521 (1st Dept. 1976); Stim
v. Stim, 65 AD 2d 790 (2d Dept. 1978). In Farkas v. Farkas, 26 AD 2d 919
(1st Dept. 1966), the parties separated, but continued to engage in
sexual relations. By a separation agreement dated Nov. 17, 1962, the
defendant husband agreed to pay the wife $1,250 per month for her
support and maintenance. She later contended that thereafter, the
parties resumed their marital relationship. However, the court held that
mere cohabitation and sexual intercourse between the parties, following
the execution of the separation agreement, did not render the agreement
invalid absent proof of an intention to abandon the separation
agreement. No such intention was shown by the facts, which included
that: 1) following the separation and prior to the execution of a
reconciliation agreement the wife moved into a hotel; 2) she thereafter
continued to live at the hotel and paid her bill there with part of the
$1,250 per month she received under the terms of the separation
agreement; 3) the husband maintained an apartment elsewhere; 4) the wife
later moved into an apartment on a three-month sublease signed by the
husband and each paid half of the rent, but the husband continued to
maintain a separate apartment; and 5) during the entire interval the
plaintiff continued to receive the sum of $1,250 per month. There also
was credible testimony that the wife, as a condition to resumption of a
full marital relationship, had demanded a revision of the parties’
prenuptial agreement and that the husband had refused to consent to
this. The Appellate Division held that the evidence failed to support
the wife’s contention that the parties had reconciled.
Parties have found ways to make their
intentions concerning reconciliation after separation even more clear,
though some may be unhappy with the results. In Lotz v. Lotz, 135 A.D.2d
1007 (3d Dept 1987), a relevant provision of the separation agreement
provided that it could not be modified except by a written agreement
"duly subscribed and acknowledged with the same formality as this
Agreement." Later, the parties signed an "addendum agreement," drafted
by the wife’s attorney, in which they expressed their intent to be bound
by the original agreement despite the fact that they were going to try
to reconcile. The record indicated that the attempt at reconciliation
was short-lived. The wife then alleged that the separation agreement was
invalidated by the defendant’s cohabitation with her following execution
of the agreement. The Appellate Division held that mere sporadic
cohabitation and sexual relations are not enough to invalidate a
separation agreement. There must be an intent to reconcile and to
abandon the agreement; here, a contrary intent was made clear by the
fact of the addendum agreement, which the wife’s attorney had drafted,
and which specifically provided that the parties’ cohabitation was not
to be considered as evidence of an intent to abandon the separation
agreement.
Where a separation agreement is nullified by a
reconciliation of the parties, it is not revived by the parties’
subsequent separation. Re Landon’s Estate, 149 Misc. 832 (1933). And
where the husband and wife are divorced after executing a separation
agreement, and then remarry each other, the agreement is abrogated. Re
Carroll’s Will, 202 Misc. 508 (1952).
Conclusion
The public policy of the State of New York
constrains a husband and wife from making some of the agreements that
they might otherwise choose to make. As we have seen, they cannot
contract to "alter or dissolve" the marriage relationship, or to relieve
one another of their support obligations, and they cannot generally keep
their separation agreements in force if they reconcile and resume their
marital status. Counsel must take care when drafting a separation
agreement — or for that matter, any other marital contract — to avoid
running afoul
of GOL § 5 311, or of any other aspect of New York public policy,
whether codified or expressed in court decisions.
Bari Brandes Corbin
maintains her offices for the practice of law in Laurel Hollow, NY. She
is co-author of Law and the Family New York, Second Edition, Revised,
Volumes 5 & 6 (Thomson-West). Evan B. Brandes is an
associate with Baker & McKenzie, in Sydney, Australia. They co-author,
with Joel R. Brandes, President of Joel R. Brandes Consulting Services
Inc. (www.brandeslaw.com),
the annual supplements to Law and the Family New York, Second Edition,
Revised (Thomson-West). © Copyright, 2011. Joel R. Brandes Consulting
Services, Inc., Bari Brandes Corbin and Evan B. Brandes. All rights
reserved. |
