A signature by a notary is not a proper acknowledgment. As a result “Promissory Note” deemed a postnuptial agreement was unenforceable. So held the Appellate Division, Second Department, in its March 2, 2016 decision in Ballesteros v. Ballesteros.
In this case, the parties were married on July 27, 2008. Prior to their marriage, on July 23, 2008, the parties had signed a prenuptial agreement, opting-out of New York’s statutory scheme governing maintenance and equitable distribution. Thereafter, in the summer of 2009, the husband told the wife he wanted a divorce and she needed to leave his home. The wife began looking for a place to live.
The husband then changed his mind and told the wife he did not want to get divorced and that they should try to resolve their problems. The wife did not want to get divorced and told the husband she was willing to work on their marriage, but she needed financial security from him. The husband agreed to sign a document entitled “Promissory Note” in which he agreed to purchase a condominium for the wife, in the event of a divorce, in an amount not less than $250,000. The wife drafted the agreement, and both she and the husband signed it on September 3, 2009. The husband told the wife he would return the agreement to her after he had it notarized. A notary signed the agreement, but did not attach a certificate of acknowledgment.
The parties continued to work on their marriage, but at some point thereafter, the husband again asked the wife to leave his home. The wife commenced an action on June 14, 2012, for a divorce and to enforce the promissory note.
After a hearing, Supreme Court, Putnam County Justice Francis A. Nicolai held that the document entitled “Promissory Note” was an enforceable agreement and directed the husband to pay the wife $250,000. The husband appealed.
The Second Department held that contrary to the wife’s contention, the agreement signed by the parties, despite its title of a “Promissory Note,” was an agreement between spouses subject to Domestic Relations Law § 236(B)(3). Pursuant to Domestic Relations Law § 236(B)(3):
[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.
A written agreement between parties made before or during a marriage which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable. Therefore, the appellate court concluded that a postnuptial agreement that is signed but not acknowledged is invalid and unenforceable in a matrimonial action. Here, although the postnuptial agreement was signed by a notary public, it was not properly acknowledged and was unenforceable.
Notaries public commonly serve two functions relating to documents. First, they can administers oaths so that the author may swear to the truth of the contents. Second, authors may acknowledge their signatures before notaries who by then signing the acknowledgment form, verify the identity of the authors and their signatures. It is the latter that is required for marital agreements. That is the “form” entitling a deed to be recorded. The form recites:
On [DATE], before me, the undersigned, personally appeared [AUTHOR], personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that [HE/SHE] executed the same in [HIS/HER] capacity and that by [HIS/HER] signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.