Does a four-day delay in notarization by the mediator/notary of a separation agreement  executed by the parties in a Zoom session with the mediator render the agreement invalid? In his June 29, 2021 decision in Ryerson v. Ryerson, Warren County Acting Supreme Court Justice Richard B. Meyer held it did not.

The parties used William J. McCoskery as mediator to assist them in resolving various matters attendant to their divorce. They met once in person with the mediator, during which he advised both parties to consult with an attorney. Based upon his discussions with the parties, the mediator prepared a 15-page separation agreement and emailed it to both parties for their review. The husband claimed not to have read the complete document.

The Governor declared the Covid state of emergency on March 7, 2020. Notarization using audio-video technology was authorized by Executive Order No. 202.7. That Order provides:

Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

    • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
    • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
    • The person must affirmatively represent that he or she is physically situated in the State of New York;
    • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
    • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
    • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.


Continue Reading Delayed Notarization by Mediator Does Not Invalidate Separation Agreement Signed Over Zoom

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.


Continue Reading Do Marital and Divorce Agreements Have To Be Signed in the Presence of the Notary?

pen in the man's hand and signature

Among their powers notaries public administer oaths and receive and certify acknowledgments or proof of deeds and other instruments in writing (Executive Law §135). An acknowledgement provides proof of the identity of the purported signatory of a document. It reads (Real Property Law §309-a):

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.

Domestic Relations Law §236(B)(3) provides that an agreement 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 . . . .”

Parties often will resolve their divorce actions through with Separation Agreements or Stipulations of Settlements, the terms of which are incorporated in their Judgment of Divorce. Those agreements and stipulations often survive the entry of the Judgment of Divorce as independently enforceable contracts.

In his  June 10, 2015 decision in Defilippi v. Defillipi, Westchester County Supreme Court Justice Paul I. Marx, held that agreements that are entered within pending divorce actions and conclude those actions need not be acknowledged. They must only meet the requirements of C.P.L.R. 2104 and, if not entered in open court, be written, signed and filed with the county clerk.


Continue Reading Stipulations Resolving Divorce Actions Need Not Be Acknowledged