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CASE 1: THE ACKNOWLEDGMENT OF SIGNATURES ON A NUPTIAL AGREEMENT MUST BE CONTEMPORANEOUS, BUT NOT NECESSARILY SIMULTANEOUS, WITH THE SIGNING; HERE A SEVEN-YEAR DELAY WAS TOO LONG; CASE 2: A DEFECT IN THE ACKNOWLEDGMENTS, HERE THE LAWYERS’ FAILURE TO STATE THE SIGNERS WERE PERSONALLY KNOWN TO THEM, DID NOT INVALIDATE THE AGREEEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined: (1) Pursuant to Domestic Relations Law (DRL) 236 (B) (3), the acknowledgment of signatures on a nuptial agreement must be contemporaneous, but not necessarily simultaneous, with the signing: and (2) if the signing is contemporaneous, but the acknowledgment is defective, the nuptial agreement remains enforceable. Here, in the Anderson case, the husband’s signature was not acknowledged until seven years after the signing (shortly before filing for divorce). In that circumstance the agreement would have to be reaffirmed to be enforceable. In the Koegel case, the lawyers’ acknowledgments failed indicate the undisputed fact that the signers were personally known to them. The defect in the acknowledgments did not affect the validity of the agreement and there was no need for reaffirmation:

[Re: Anderson:] A document that depends on an untimely acknowledgment is the legal and functional equivalent of an unacknowledged document. However, in a case involving such a document, the parties are not without a remedy. When there is an excessive delay rendering an acknowledgment ineffective and the agreement therefore unenforceable, the parties are free to reaffirm their agreement, again based on the information available to them at that time. To comply with DRL § 236 (B) (3), reaffirmation would require that both parties must again sign and acknowledge the agreement. The rule thus places the parties on a fair and equal footing in deciding whether to be bound by the agreement—either initially or at some future date if the agreement is unenforceable because of the delay. * * *

[Re: Koegel:] We … hold that the defect … presented in this appeal may be overcome with adequate evidence that the statutory requirements were met, even if the acknowledgment is not properly documented in the first instance. This limited remedy avoids invalidating a nuptial agreement when the parties have done all that the DRL requires of them. In other words, the signature and acknowledgment may satisfy the statutory mandates if extrinsic evidence supports “that the acknowledgment was properly made in the first instance” even if the certificate fails to “include the proper language” due to the notary’s or other official’s error … . Anderson v Anderson, 2021 NY Slip Op 07058, CtApp 12-16-21

 

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