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.
In the case before her, the acknowledgment recited:
I,__________ , a Notary Public in and for said County, in the State aforesaid, do hereby certify that [NAME OF PARTY], personally known to me to be one of the persons whose names are subscribed to the foregoing Premarital Agreement, appeared before me this day in person and acknowledged that he has signed, sealed and delivered the foregoing Premarital Agreement as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and notarial seal this 14th day of October, 2004.
The proper wording is found in Real Property Law §309-a. An acknowledgment, “must conform substantially with the form” set forth therein. The form reads:
On the . …day of…. in the year… before me, the undersigned, personally appeared…., personally known to me or proved to me on the basis of satisfactory evidence to the be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
In B.W., the husband sought to invalidate his prenuptial agreement by challenging the acknowledgment. He argued that Real Property Law §292 requires that the notary witness the signature and say so in the written certificate.
The husband’s argument went on: the notary used the past tense to state that the party “acknowledged that he has signed… the …Premarital Agreement.” [Would the past tense be that he “had” signed?] He argued and that because of the use of the past tense “has signed” in the acknowledgment, the requirements of Real Property Law §292, that the notary witness the agreement’s execution and certify this fact in writing, had not been satisfied.
Although not determinative, the husband did not allege that either party failed to be present before the notary. In fact, the wife stated in her opposing affidavit that both parties were present before the notary at their local bank branch when they signed and the husband did not refute her claim in his reply.
However, as Justice Christopher noted, Real Property Law §292,titled “By whom conveyance must be acknowledged or proved,” differentiates between conveyances that are acknowledged and conveyances that are proved by use of a subscribing witness. In pertinent part, the section reads “such acknowledgment can be made only by the person who executed the conveyance, and such proof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the conveyance as a witness.” Real Property Law §292 does not state that the notary must say in the acknowledgment that he witnessed the signature, Justice Christopher citing Matisoff v. Dobi, 90 NY2d 127 (1997).
Contrary to the husband’s argument, Justice Christopher found that the language in the instant acknowledgment conformed substantially with the Uniform Form Certificate of Acknowledgment provided in Real Property Law §309-a. Both acknowledgments use the past tense regarding the signing of the document.
Justice Christopher found that the parties’ acknowledgment was valid. As required by law, 1) the parties made the oral declaration that they in fact signed the prenuptial agreement; and 2) the notary actually knew the parties’ identity or secured satisfactory evidence that the signer was the person described in the document. Accordingly, the husband’s motion to set aside and invalidate the premarital agreement was denied.
However, does the notary have to witness the signature? In Matisoff, the Court of Appeals noted that D.R.L. §236 (B) (3) and the Real Property Law do not specify when the requisite acknowledgment must be made; that it was unclear whether the acknowledgment must be contemporaneous with the signing of the agreement. New York’s highest court had never directly addressed the question whether and under what circumstances the absence of acknowledgment can be cured. The Matisoff opinion noted a conflict in the lower courts on the issue, although it would appear that the decisions that would not have allowed delayed acknowledgment are distinguishable.
As Justice Christopher noted, there is nothing in the required language of Real Property Law §309-a that says the notary actually witnessed the signature.
Real Property Law §291 states that a conveyance of real property, on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter . . .” may be recorded. Section 292 is titled By whom conveyance must be acknowledged or proved.” Only the signer may acknowledge his or her signature. ; “. . . [P]roof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the conveyance as a witness.”
Either acknowledgment or proof is required; not both. The notary before whom the signer acknowledges his signature signs to attest to the matters stated in the required form, and not as a witness to the signing of the document.
Indeed, R.P.L. §303 provides the “requisites of acknowledgments.” “An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.”
Why would the notary need “satisfactory evidence” that the acknowledger was the “person who executed such instrument” if the notary witnessed the signature?
Here, again, the relevant section, Domestic Relations Law §236B(3), states that the agreement must be “acknowledged or proven in the manner required to entitle a deed to be recorded.”
Witnessing the signature should not be a prerequisite for a notary to certify the acknowledgment.
Walter F. Bottger, Esq., of Berkman Bottger Newman & Rodd, LLP, of Manhattan, Ellen Werfel-Martineau, Esq., of The Kitson Law Firm, PLLC, of White Plains, represented the parties.