Relates to the proof of acknowledgment of the agreement of the parties in an action or proceeding.
Ayes (58): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Excused (3): Hassell-Thomps, Hoylman, Smith
TITLE OF BILL: An act to amend the domestic relations law, in relation to the proof of acknowledgment of the agreement of the parties in an action or proceeding
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.
The measure would amend subdivision 3 of Part B of section 236 of the Domestic Relations Law so that a notary's inadvertent mistake does not invalidate an otherwise valid written agreement that both parties undisputedly signed.
Subdivision (3) currently requires that, in order to be valid, a written agreement made before or during marriage must be "subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." The provision thus adopts the requirement, set forth in section 291 of the Real Property Law, that each signature must be "duly acknowledged by the person executing the same" or "proved" by use of a subscribing witness.
Due to the impracticality of the latter alternative, parties almost invariably opt for the acknowledgment option. A notary public is called, verifies that the individual who is signing in the notary's presence is indeed the individual described in the document, and so attests in the usual catechism.
The acknowledgment requirement fulfills two functions. First, it "serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person." Matisoff v. Dobi, 90 NY2d 127, 133 (1997). Second, "it necessarily imposes on the signer a measure of deliberation in the act of executing the document." Galetta v. Galetta, 21 NY3d 186, 192 (2013).
However, there is a problem with the inflexible nature of the current requirement concerning certification of the acknowledgment. The problem was plainly demonstrated by the Court of Appeals' recent ruling in Galetta. In that case, it was undisputed that both parties had signed the subject agreement, and, more than that, that both parties had done so in the presence of a notary who was retained specifically for that purpose. Unfortunately, the notary retained to notarize the husband's signature inadvertently omitted a portion of the "boilerplate" language stating that the notary had confirmed the identity of the signatory, with the consequence that the notary's certification of the acknowledgment was defective. For that reason, and also because the notary could (understandably) not remember an entirely unmemorable event that had occurred many years earlier, a prenuptial agreement that both parties had undisputedly signed was deemed legally invalid.
The proposed amendment would not dispense with the requirement that the agreement be "duly acknowledged" or "proved" by a subscribing witness. We believe that the requirement is good policy, serving the two purposes noted above. So, as before, if either signatory fails to
sign in the presence of a notary formally retained to certify the signature, the agreement will not be valid.
This measure would, however, allow some flexibility in the manner in which the acknowledgment is proven. More specifically, if a notary is called to certify the written acknowledgment where the notary's acknowledgment is defective in form, when the signing of the document by the parties and the parties' acknowledgment are proven, the court may ignore defects as to the form of the acknowledgment. The party may, for example, present testimony from the notary to the effect that his or her customary practice was to ask and confirm that the person signing the document was the same person named in the document.
Such was proposed by the Appellate Division majority in Galetta, and we believe that the idea is a good one. By injecting a modicum of flexibility into the statute, we can continue to ensure that marital
and pre-marital agreements are authentic and are preceded by some measure of deliberation, while also ensuring that a notary's inadvertent error does not irrevocably alter the parties' lives.
This measure, which would have no fiscal impact on the public treasury, would take effect immediately.
None. New Proposal.
STATE OF NEW YORK ________________________________________________________________________ 7142 IN SENATE April 30, 2014 ___________Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the domestic relations law, in relation to the proof of acknowledgment of the agreement of the parties in an action or proceeding THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 of part B of section 236 of the domestic relations law, as amended by chapter 595 of the laws of 2003, is amended to read as follows: 3. 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. HOWEVER, WHERE THERE IS A WRITTEN CERTIFICATION OF ACKNOWLEDG- MENT THAT IS DEFECTIVE IN FORM, AND SIGNING OF THE DOCUMENT BY THE PARTIES AND THE PARTIES' ACKNOWLEDGMENT ARE PROVEN, THE COURT MAY IGNORE DEFECTS AS TO THE FORM OF THE ACKNOWLEDGMENT. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter. Such an agreement may include (1) a contract to make a testa- mentary 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 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 uncon- scionable 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 section two hundred forty of this article. Nothing in this subdivision shall be deemed to affect theEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13642-01-4 S. 7142 2
validity of any agreement made prior to the effective date of this subdivision. S 2. This act shall take effect immediately.