Agreements and Stipulations

It is common for the parents of young children when entering a divorce settlement agreement to defer until the children approach college age the determination of the parents’ obligations to contribute. The language chosen to express that deferral may be significant.

The recent decision of the Appellate Division, Second Department, in Conroy v. Hacker, lets us know the agreement language is significant. But we are left asking what would have happened without it.

In Conroy, the parties were married in 1991 and were the parents of two children. Their 1999 divorce judgment incorporated, but did not merge, a 1998 separation agreement. As relevant here, the separation agreement stated:

The parties are not making any specific provisions for the payment of college expenses which may be incurred on behalf of the infant children because of the tender age of said children as of the date of this Agreement. The parties do, however, acknowledge an obligation on each of their parts to contribute to the children’s future college expenses in accordance with their financial abilities at that time.


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Keep a secret

The failure of a spouse to disclose a material change in facts that occurred during settlement negotiations may result in an invalidation of the related settlement provisions.

So held the he Appellate Division, Third Department in its May 11, 2017 decision in Flikweert v. Berger, invalidating one paragraph of a divorce settlement separation agreement and remanding the matter to address the appropriate equitable distribution of the funds in issue.

The parties were married in 1997 and had one child. In June 2014, the wife commenced this action for a divorce. After extensive negotiations, the parties executed a separation agreement on September 15, 2015 that addressed issues including equitable distribution, child support, custody and spousal maintenance.

Paragraph 21 of the separation agreement concerned the wife’s ownership interest in her employer, a privately held company. The wife began employment with the company in February 2012. In August 2013, the wife was awarded unvested equity incentive units by the employer. By September 2015, half of the units were vested.


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In its November 23, 2016 decision in Gardella v. Remizov, the Second Department upheld an improperly-executed 2002 postnuptial agreement on the basis of ratification, and a 2006 postnuptial agreement alleged to be unconscionable, but sent the matter back to the trial court for financial disclosure and an inquiry to consider the parties’ 2010 separation agreement.

The parties to this matrimonial action were married in 2000. In October 2002, the parties entered into a postnuptial agreement which provided, among other things, that the marital residence and the wife’s private medical practice were the wife’s separate property. In 2006, the parties entered into a second postnuptial agreement which provided that four parcels of real property in Florida acquired by the parties during the marriage had been purchased with the wife’s separate property, and further addressed the distribution of those four parcels in the event of a divorce.

In 2010, the parties entered into a separation agreement, which addressed, inter alia, issues of maintenance and equitable distribution of the parties’ respective assets. At the time, the wife, a neurologist, was earning approximately $600,000 per year, and the husband, a wine salesman, was earning approximately $40,000. The separation agreement provided, among other things, that the husband would have no interest in any of the assets acquired during the parties’ marriage, including six parcels of real property, the wife’s partnership interest in a neurological practice, and the wife’s bank and brokerage accounts. The husband also waived his right to spousal maintenance. The husband was not represented by counsel when he executed the separation agreement.


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In its August 24, 2016 decision in Maddaloni v. Maddaloni, the Appellate Division, Second Department, upheld the rulings of Supreme Court Suffolk County Justice Justice Carol Mackenzie that invalidated the all-but-complete maintenance waiver contained in a 23-year-old postnuptial agreement, awarding the wife maintenance for 10 years. The appellate court also upheld Justice Mackenzie’s award to the wife of 25% of the $2,000,000 appreciation during the marriage in the value of the husband’s pre-marital business, Maddaloni Jewelers of Huntington.

The Maddalonis were married in January, 1988. At the time of the marriage, the husband owned several cars, a house, and a jewelry business, and he was in contract to buy a shopping center. On August 22, 1988, less than eight months after the parties were married, they experienced marital difficulties and entered into a postnuptial agreement. Among other things, this agreement provided that, in the event that the parties divorced after the first five years of marriage, the wife agreed to accept the sum of $50,000, payable in five equal annual installments of $10,000, “in full satisfaction of any and all claims of whatsoever kind and nature she may have at that time for past or future support or for distribution of assets.”


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Marital and divorce agreements have to be “notarized.” But does the notary have to be present and witness the actual signing?

New York’s Domestic Relations Law §236B(3) states “[a]n 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.”

What does “acknowledged or proven in the manner required to entitle a deed to be recorded” mean.

In her June 1, 2016 decision in B.W. v. R.F., Westchester County Supreme Court Justice Linda Christopher upheld a prenuptial agreement in which the notary’s “acknowledgment” used the wrong wording.


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A divorce settlement agreement requires clear language. It must also anticipate the thousands of details needed to complete the financial disentanglement and establish post-divorce rights and obligations. The parties must unceasingly ask their counsel “what if? Before signing their agreement, parties must envision how each type of transaction will actually be accomplished.

That need is made clear in the June 29, 2016 decision of the Appellate Division, Second Department, in Frances v. Frances.

The parties entered their divorce stipulation of settlement on January 19, 2010. On this post-judgment application, the ex-husband asked to enforce the stipulation by directing his former wife to pay him 50% of the refund received from the parties’ 2009 joint tax return, 50% of the school tuition and camp expenses for the parties’ youngest child, and 50% of the cost of certain repairs to the marital residence. Rockland County Supreme Court Justice William A. Kelly granted that relief and the wife appealed.


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K-1-cropped-wideIn its May 11, 2016 decision in Eifert v. Eifert, the Appellate Division, Second Department, appears to discuss the interrelationship between the calculation of child support and the “income” shown on a partnership K-1 tax form. In truth, it does not.

In their divorce settlement agreement, the parties agreed that the father would pay child support consisting of two components. The first component required the father to pay $4,400 per month. As summarized by the Second Department in its opinion, the second component required the father to pay “25% of the income he derived from his ownership of stock in Eifert French & Co.”

Years later, the mother sought to recover child support arrears in the sum of $63,283.25 arising from the second component of the father’s child support obligation. The mother arrived at this sum by performing calculations based on K-1 statements received by the father from Eifert French & Co.

In opposition, the father contended that the second component of his child support obligation should be calculated based only on distribution checks he received from Eifert French & Co, rather than the income reflected on his K-1 statements. Based on that limitation, the father calculated that the correct amount of arrears he owed for this second component of his child support obligation was $21,137.49.

Supreme Court, Westchester County Justice Colleen D. Duffy agreed with the father and found arrears to be $21,137.49. The mother appealed.


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In its May 25, 2016 decision in Fitzpatrick v. Fitzpatrick, the Appellate Division, Second Department, affirmed the denial of an ex-wife’s application to enforce a divorce settlement provision that called for an automatic increase in child support upon the ex-husband’s default in any other obligation of that settlement.

The parties entered into that separation

female graduate with her fatherWhen a divorce settlement contemplates paying child support throughout four years of college, what happens when the child graduates in three?

The statutory obligation to support a child ends at the child’s 21st birthday. It is common with divorce settlements to extend child support beyond the 21st birthday if the child is continuing to attend college on a full-time basis. However, defining when the periodic support obligation will end is not always made clear.

Take the March 30, 2016 decision of the Appellate Division, Second Department, in Fleming v. Fleming. The parties’ divorce stipulation of settlement required the father to pay periodic child support until the children reached the age of 21, or the completion of “four (4) academic years of college,” whichever occurred last, but in no event beyond the school year of the child’s 23rd birthday.

However, the parties’ daughter graduated from college after only three years of study, one month after her 21st birthday. The father stopped paying child support. The daughter went on to graduate school.

The mother moved to enforce the stipulation’s obligation for the father to pay periodic child support. She asserted that the stipulation required the father to continue paying child support during their daughter’s first year of graduate school. Suffolk County Supreme Court Justice Stephen M. Behar granted the mother’s motion, finding that the child had completed only three academic years of college. Justice Behar directed the father to continue paying child support until the child completed “four (4) full academic years of college, or until the child’s 23rd birthday, whichever occurs first.”

The Second Department reversed.

When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.


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