Chapter 4 ACKNOWLEDGMENTS

• Jurisdiction: New York

Chapter Four

Acknowledgments

I. Late-Date Acknowledgments

"An agreement by the parties, made before or during the marriage" must comply with the three procedural formalities set forth in Domestic Relations Law § 236B(3). It must be: (1) in writing; (2) subscribed by the parties; and (3) and acknowledged or proven in the manner required to entitle a deed to be recorded." The acknowledgment provision does not apply to former spouses.¹⁵¹²

Rio v. Rio¹⁵¹³ held that "DRL § 236B(3) 'applies only to agreements entered into outside the context of a pending judicial proceeding.'" In Penrose v. Penrose,¹⁵¹⁴ the parties signed a separation agreement which was incorporated but not merged into a judgment of divorce. Thereafter, by an "Agreement and Waiver," plaintiff waived all of her rights under the divorce decree in exchange for specific bequests as set forth in a will executed by defendant that same day. She brought an order to show cause to challenge the validity of the waiver because it did not contain an acknowledgment pursuant to DRL § 236B(3).

Citing Hargett v. Hargett,¹⁵¹⁵ the Appellate Division noted that, even if her challenges had not been time barred, the parties were no longer married at the time of the execution of the waiver and did not, therefore, require an acknowledgment. Critically, a waiver does not even require an agreement; nor does it require or depend upon a new contract, new consideration, or an estoppel.¹⁵¹⁶ A waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.¹⁵¹⁷

In Rubenfeld v. Rubenfeld,¹⁵¹⁸ the First Department stated: "we hold that the formalities of § 236(B)(3), by the statute's terms and its legislative intent, do not govern an oral agreement entered on the record in open court during a matrimonial action intended to settle that action."¹⁵¹⁹ []

Where a document on its face is properly subscribed and bears the acknowledgment of a notary public, it gives rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary.¹⁵²⁰

In Arabian v. Arabian,¹⁵²¹ the parties signed an unacknowledged "Binding Arbitration Agreement" immediately before the wedding ceremony, wherein "they agreed to submit to a religious tribunal, for a binding decision, any dispute over issues relating to a religious divorce, premarital agreements or monetary matters." When the plaintiff commenced a divorce action, the defendant moved for a stay and to compel arbitration. "In light of the sweeping language in Matisoff v. Dobi,¹⁵²² and the statute's plain terms, the agreement, which addressed matters of substance, falls within the scope of the statute and therefore is not enforceable to the extent it purports to require arbitration of disputes beyond the issue of the [religious divorce]."

N.Y. Domestic Relations Law § 11(4) (DRL), "by whom a marriage must be solemnized,"¹⁵²³ allows a written contract of marriage that complies with the specified formalities, to be "acknowledged before a judge of a court of record."¹⁵²⁴ "Since town, village and justice courts are not on the list of courts of records, these courts and judges thereof may not acknowledge written marriage contracts."¹⁵²⁵ DRL § 236B(3) was amended to allow "an acknowledgment of an agreement made before marriage [if the agreement is] executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter."

Domestic Relations Law § 236B(3) was amended to provide:

Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter.

Generally an acknowledgment does not pertain to the validity of an instrument. Its purpose is to furnish due proof of the execution of instruments affecting real property. An instrument is good between parties even though defective acknowledgment prevents its recording. ¹⁵²⁶ Similarly, a marital agreement that is defective due to the absence of an acknowledgment, nevertheless, remains viable and enforceable in other nonmatrimonial litigation between the parties themselves.¹⁵²⁷

A certificate of acknowledgment attached to an instrument such as a deed raises a presumption of due execution, which presumption can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed.¹⁵²⁸ Where a document on its face is properly subscribed and bears the acknowledgment of a notary public, it gives rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary.¹⁵²⁹ Furthermore, a certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty.¹⁵³⁰ Presumptions are indulged in to take the place of facts; they are never allowed against ascertained and established facts. Presumptions disappear in the presence of established facts.¹⁵³¹

Although seemingly approved in the decision based on cited case law,¹⁵³² the Court of Appeals has declined to squarely rule on the question of late-date acknowledgments, a crisis that surfaces when irrespective of the reason or presence of subscribing witnesses, a party or parties to a prenuptial agreement, separation agreement, settlement agreement, or the settlor of a will have not acknowledged the document contemporaneously with its execution. They had forgotten that to win the race, it is necessary to actually cross the finish line; to wit, the acknowledgment of the agreement. As discussed below, the act of the acknowledgment does not, in and of itself, confer any jural rights. Rights accrue only once there has been a meeting of the minds and a mutual assent to the terms.¹⁵³³

II. Parallel Scheme in the Estates, Powers & Trusts Law and other Statutes; Mandatory, Directory Statutes

N.Y. Estates, Powers and Trusts Law 5-1.1-A(e)(2) (EPTL), Right of Election by Surviving Spouse, provides that "a waiver or release [of the right of election] must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property."¹⁵³⁴ The same is true for EPTL 7-1.17 (execution, amendment and revocation of lifetime trusts).¹⁵³⁵

Domestic Relations Law § 236B(3) encourages the contractual resolution of issues, both before the marriage (prenuptial agreement) or after the marriage¹⁵³⁶ (separation agreement or settlement agreement), via an opt-out agreement from the equitable distribution framework, including: (1) testamentary provisions of any kind; (2) waivers of any right to elect against the provisions of a will, (3) distribution of separate and marital property; (4) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship; (5) custody; (6) all elements of child care and support; and (7) anything else of concern to the parties. Such agreements may then be enforced within a matrimonial action,¹⁵³⁷ provided the agreement comports with three procedural formalities: "[I]t is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." N.Y. Real Property Law (RPL) governs the procedural and substantive parameters of the acknowledgment process.¹⁵³⁸

The line between mandatory and directory statutes cannot be drawn with precision; this type of issue must be resolved on a case-by-case basis, but in determining whether a statute is mandatory or directory, the primary consideration must be to ascertain and give effect to the intent of the Legislature.¹⁵³⁹ A provision is mandatory when the power can only be exercised in accord with its terms.¹⁵⁴⁰ Directory means advisory but not mandatory compliance.¹⁵⁴¹ The inquiry involves a consideration of the statutory scheme and objectives to determine whether the requirement may be said to be an "unessential particular" or, on the other hand, relates to the essence and substance of the act to be performed and thus cannot be viewed as merely directory.¹⁵⁴²

Mode of Performance of Act Not Material states: "A statute directing the performance of an act in a specified mode, which mode is not material, will be considered as directory only; but when the mode is prescribed so as to prohibit the performance in any other manner, the statute will be considered mandatory."¹⁵⁴³

As creatures of the Legislature, EPTL¹⁵⁴⁴ and DRL¹⁵⁴⁵ require compliance with the procedural format set forth in the statutory framework as an absolute predicate to the legislatively conferred benefit. Real Property Law § 292 provides two equally valid methods for recording a deed, discussed below, and the selection of either method satisfies the acknowledgment component of the DRL and the EPTL.

The dissent in Kennilwood Owners Ass'n v. Spanier ¹⁵⁴⁶ noted that where "a statute clearly imposes a procedure governing the validity of an act out of which new jural relations arise, we must read the statute narrowly to give effect to the intent of the Legislature."

III. Acknowledgment: A Two-Step Procedure

It is well-settled that the language "in the manner required to entitle a deed to be recorded" involves a two-step process "that an oral acknowledgment be made before an authorized officer and that a written certificate of acknowledgment [as evidence that the named declarant made the requisite declaration] be attached."¹⁵⁴⁷

In Galetta v. Galetta,¹⁵⁴⁸ the Court of Appeals stated:

Three provisions of the Real Property Law must be read together to discern the requisites of a proper acknowledgment:

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