In its December 16, 2021 decision in Anderson v. Anderson, New York’s highest court ruled that the parties to a prenuptial or postnuptial agreement must acknowledge their signatures within a reasonable time of their signing. In a second appeal in Koegel v. Koegel, the Court of Appeals in its same decision also held that if the agreement is acknowledged by the parties at or within a reasonable time after signing, a defect in the acknowledgment certificate form may be cured at a later time by extrinsic proof.
In Anderson, the wife had signed and acknowledged the nuptial agreement the month after the wedding. Regardless of when the husband signed the agreement, his signature was not acknowledged until nearly seven years later, shortly before he commenced a divorce action and in anticipation of his wife’s imminent divorce filing.
In Koegel, the parties executed a nuptial agreement approximately one month before their marriage. The agreement provided that neither party would claim any part of the other’s estate, with both waiving their respective elective or statutory shares. Both parties signed the agreement, and their signatures were acknowledged, each by his or her own lawyer. The acknowledgment followed the statutory requirements in all but one respect: both lawyers failed to attest that the signer was known to them.
Domestic Relations Law §236(B)(3) provides that an agreement entered before or during a marriage will 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.”
A party usually acknowledges his or her signature before a notary public. The notary then signs and stamps the acknowledgment form that under Real Property Law §309-a is required to state as follows:
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 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.
The Court of Appeals noted that an unacknowledged nuptial agreement is unenforceable, even when the parties later admit that the signatures are authentic and that the agreement was not tainted by fraud or duress. The “obvious spirit and intent” of the Domestic Relations Law “must be understood to require an acknowledgment that is reasonably close temporally to the period when the signing parties have considered the consequences of the nuptial agreement and decided to be bound by its terms.” A “a significant delay between a signature and acknowledgment calls into question whether there was a shared understanding of the relevant circumstances.”
The Court held “that an acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement.” This rule allowed for execution in counterparts and would allow for a reasonable delay between signing and acknowledgment. The Court recognized that there could be any number of practical reasons a party could not acknowledge his or her signature to a notary simultaneously with signing. “For example, a brief lapse in time between the signing and the acknowledgment before a notary or other official is reasonable when the official is not immediately available, such as during holidays and vacations or a party suffers from an illness or is unable to obtain time off from work.”
On the other hand, allowing the acknowledgment to be completed at any time:
would encourage a party to withhold acknowledgment and would allow that party to wait until they can reassess the terms based on changed economic standing and unanticipated events. Permitting Jack’s unreasonably delayed commitment would be at odds with the purpose of an antenuptial agreement under which both parties consider terms that are designed based on their respective personal and professional lives at the time of execution and their predictions of their future together, and not on actual events that transpire years into the marriage, including later economic success or failure.
A party cannot be allowed to delay his decision whether to be bound by the agreement until when he has “the benefit of hindsight and full knowledge of the parties’ respective economic positions shortly before filing for divorce.”
The Court held the Anderson’s agreement invalid and unenforceable.
On the other hand, the Court upheld the Koegel’s agreement.
There, approximately one month before their marriage, the Koegel’s entered an agreement that provided that neither party would claim any part of the other’s estate and both parties waived their respective elective or statutory share. The Husband died. His son filed a petition to probate his father’s Will. The wife attempted to invoke her elective share, arguing the prenuptial agreement was invalid because the acknowledgment certificate did not itself state that the notary knew the person acknowledging.
In opposition to the wife’s application, the son submitted separate written affirmations from the lawyers who had acknowledged the signing. The wife’s lawyer stated that he recalled taking her acknowledgment of her signature and that she did not need to provide proof of identification because she was known to him at the time; the husband’s lawyer stated the same with respect to the husband and his signature, and also explained the basis of his professional knowledge of the husband’s identity.
The Court upheld the agreement noting that here, due to no fault of the parties, the certificate of acknowledgment was defective or incomplete. As the acknowledgment by the party was proper, the defect in the certificate’s form could “be overcome with adequate evidence that the statutory requirements were met.” “This limited remedy avoids invalidating a nuptial agreement when the parties have done all that the DRL requires of them.”
In Anderson, Barbara A. Kilbridge, Esq., of Buffalo, represented the wife and Lyle T. Hajdu, Esq., of Lakewood, represented the husband.
In Koegel, Hon. Susan Phillips Read represented the husband’s estate and Andrew D. Himmel, Esq., of Manhattan, represented the wife.