Chapter 21 RECONCILIATION AND REPUDIATION OF AGREEMENTS

JurisdictionNew York

Chapter Twenty-One

Reconciliation and Repudiation of Agreements

I. Reconciliation or Repudiation of an Agreement

The law does not favor separation of husband and wife and encourages reconciliation.3251 Reconciliation is another method of agreement modification, albeit, that it need not be expressed but, rather, rests on presumption and works by operation of law. It may be said that it is the consummate such method because it vitiates the entire agreement, not simply select provisions. Under New York law, a divorced couple's cohabitation does not reformalize their legally terminated marriage or affect the validity of a separation agreement.3252 The resumption of the marital relation annuls the prior separation agreement.3253

In 1891, the Court of Appeals stated that reconciliation does not depend upon any particular degree of reciprocal affection or esteem. As between persons in such relation, it may arise from appreciation and observance by them of their marital duty to each other.3254

Only a resumption of the marital relationship, to wit, a continuous living together as husband and wife in combination with an intention to abandon the separation agreement, will invalidate the agreement. In In re Wilson,3255 the Court of Appeals captured the essence of the presumption:

Common experience teaches that, when marital property arrangements are made part of such an agreement, the separation is not merely the occasion but the underlying raison d'être for the dispositions. Once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status, absent any indication to the contrary, it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall. It is interesting to observe that the force of this principle is so pervasive that it applies whether the separation agreement is one rendered void ab initio by reason of the parties' failure to live separate and apart or whether it is one abandoned later on because the spouses have effected a reconciliation. In either case, the conduct of the spouses may be understood to manifest an intention to void the agreement in its entirety. Certainly, the rule is not a hard and fast one, but rather one which governs in the absence of reliable indicia of a contrary intention. 3256

Reconciliation must be proved via "unequivocal acts"; mere cohabitation, standing alone, is insufficient.3257 Mere cohabitation alone does not by itself destroy the validity of the separation agreement but must have, as an added ingredient, an intent to reconcile.3258 "Sporadic" cohabitation and the intermittent resumption of sexual relations will not vitiate a separation agreement.3259 Cohabitation has been variously defined as "living together as husband and wife" and as "engaging in sexual intercourse."3260 In Rudansky v. Rudansky,3261 the parties' intention to reconcile and abandon their separation agreement was established by proof of their resumption of the marital relationship by unequivocal acts3262—this list is not exhaustive; courts consider any indicia which establish the parties' intent:

1. Selling their separate apartments to purchase a new apartment together;

2. The plaintiff's quitting her job and resuming a role as a housewife such as by traveling with the defendant and attending the defendant's social and business gatherings;

3. The defendant's giving the plaintiff funds regularly to pay for their joint household expenses; and

4. Their filing of joint tax returns and stating thereon that they were married.

Reliance on representations of future reconciliation is unreasonable; talk of reconciliation without concomitant unequivocal acts of reconciliation is similarly of no moment.3263 Where the parties intermittently lived under the same roof for four years, came and went as they pleased, maintained separate bedrooms, never had sexual relations, did not share bank accounts or personal belongings, and filed separate tax returns, it was not deemed a resumption of living together as husband and wife.3264

The parties, in Martin v. Martin,3265 executed a separation agreement in 2005 that provided for the distribution of their assets. Nevertheless, they continued to live together until 2015, when the wife commenced an action for divorce. The husband's counterclaims included a declaration that the agreement was void. The Appellate Division upheld the Supreme Court that the agreement was void because the parties did not actually separate at the time of execution of the agreement or immediately thereafter. Rather, they lived together for a decade after entering into the agreement and, although more than "mere cohabitation" was required to render the agreement void, they also filed joint tax returns, maintained a joint checking account and had joint credit cards.3266 Significantly, the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. In the absence of a valid separation agreement, Supreme Court had substantial discretion in determining the fair and equitable distribution of marital property under the circumstances.

Rosner v. Rosner3267 rejected the defendant's argument that a provision waiving equitable distribution of the property in a stipulation of settlement, executed by the parties in 1992 to settle an earlier divorce action, operated to bar the plaintiff's present claim for equitable distribution of the parties' property. After executing that 1992 stipulation, the parties continued to live together with their children for at least 12 years, during which time the family moved from their first home to two successive homes. In 1993 the parties executed a stipulation of discontinuance of that prior divorce action. Moreover, the parties filed joint tax returns from 1992 through 2005. This constituted proof of the resumption of the marital relationship and the intention to abandon the 1992 agreement.

In Sifre v. Sifre,3268 the parties began living in separate houses and signed a separation agreement in 2000. The plaintiff commenced a divorce action in 2008. The defendant's answer alleged that the plaintiff had not complied with the agreement and that the parties cohabited with the intent to reconcile subsequent to executing the agreement. The Third Department held that, although reconciliation is a defense to a conversion divorce where the movant has substantially complied with the terms of the agreement,3269 a "mere sporadic cohabitation and sexual relations are not enough to vitiate a separation agreement; there must be intent to reconcile and intent to abandon the agreement."

Critically, the agreement stated that none of its provisions "shall be changed or modified, nor shall this Agreement be discharged or terminated in whole or in part, except by an instrument in writing."3270 While the parties' affidavits raised questions of fact concerning whether they reconciled, that issue was irrelevant in the face of the contract language requiring a written termination of the agreement. Accordingly, the plaintiff was entitled to summary judgment granting him a divorce.

However, in Guriel v. Guriel,3271 with no explanation as to the likely unique facts of the case, the Appellate Division enforced a separation agreement notwithstanding the parties' cohabitation for eight months following the execution of the agreement. Guriel held that the cohabitation did not raise an issue of fact regarding an intention to reconcile and abandon the agreement.

In Berger v. Estate of Berger,3272 the separation agreement was void based upon the reconciliation between the parties which established that the parties resumed living together until the husband's death. Furthermore, during the last year of the decedent's life, the plaintiff traveled and attended social gatherings with the decedent and cared for him when he was ill.

In Pugsley v. Pugsley,3273 the Appellate Division affirmed an award for summary judgment on the husband's counterclaim for a conversion divorce pursuant to N.Y. Domestic Relations Law § 170(6) (DRL), based on the uncontradicted evidence that when he moved back into the marital residence, both parties continued substantially to comply with the separation agreement. The defendant continued to pay, and the plaintiff continued to accept, child support and alimony pursuant to the terms of the separation agreement; and the plaintiff continued to remain solely responsible for the payment of the mortgage on the marital residence, also in accordance with the terms of the separation agreement. The parties maintained separate bank accounts and, after their initial separation in 1979, they never again filed joint tax returns. The defendant did not receive his mail at the marital residence, and he continued to maintain a separate post office box for his mail. These factors did not evince an intent by the parties to abandon the separation agreement. Moreover, a provision of the separation agreement itself required that any reconciliation must be reduced to writing.

In Katz v. Beckman,3274 a rare case which is sui generis, the parties' separation agreement contained language stating that

[t]his agreement shall not be invalidated or otherwise affected by a reconciliation between the parties hereto, or a resumption of marital relations between them unless said reconciliation or said resumption be documented by a written statement executed and acknowledged by the parties with respect to said reconciliation and resumption and, in addition, setting forth that they are cancelling this [a]greement. 3275

Within the following year, the parties resumed cohabitation. Over the ensuing approximately nine years, they rented a vacation home, spent three summers together...

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