BILL NUMBER:S7142

TITLE OF BILL:  An act to amend the domestic relations law, in
relation to the proof of acknowledgment of the agreement of the
parties in an action or proceeding

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

The measure would amend subdivision 3 of Part B of section 236 of the
Domestic Relations Law so that a notary's inadvertent mistake does not
invalidate an otherwise valid written agreement that both parties
undisputedly signed.

Subdivision (3) currently requires that, in order to be valid, a
written agreement made before or during marriage must be "subscribed
by the parties, and acknowledged or proven in the manner required to
entitle a deed to be recorded." The provision thus adopts the
requirement, set forth in section 291 of the Real Property Law, that
each signature must be "duly acknowledged by the person executing the
same" or "proved" by use of a subscribing witness.

Due to the impracticality of the latter alternative, parties almost
invariably opt for the acknowledgment option. A notary public is
called, verifies that the individual who is signing in the notary's
              

presence is indeed the individual described in the document, and so
attests in the usual catechism.

The acknowledgment requirement fulfills two functions. First, it
"serves to prove the identity of the person whose name appears on an
instrument and to authenticate the signature of such person."
Matisoff v. Dobi, 90 NY2d 127, 133 (1997). Second, "it necessarily
imposes on the signer a measure of deliberation in the act of
executing the document." Galetta v. Galetta, 21 NY3d 186, 192 (2013).

However, there is a problem with the inflexible nature of the current
requirement concerning certification of the acknowledgment. The
problem was plainly demonstrated by the Court of Appeals' recent
ruling in Galetta. In that case, it was undisputed that both parties
had signed the subject agreement, and, more than that, that both
parties had done so in the presence of a notary who was retained
specifically for that purpose. Unfortunately, the notary retained to
notarize the husband's signature inadvertently omitted a portion of
the "boilerplate" language stating that the notary had confirmed the
identity of the signatory, with the consequence that the notary's
certification of the acknowledgment was defective. For that reason,
and also because the notary could (understandably) not remember an
entirely unmemorable event that had occurred many years earlier, a
prenuptial agreement that both parties had undisputedly signed was
deemed legally invalid.

The proposed amendment would not dispense with the requirement that
the agreement be "duly acknowledged" or "proved" by a subscribing
witness. We believe that the requirement is good policy, serving the
two purposes noted above. So, as before, if either signatory fails to


sign in the presence of a notary formally retained to certify the
signature, the agreement will not be valid.

This measure would, however, allow some flexibility in the manner in
which the acknowledgment is proven. More specifically, if a notary is
called to certify the written acknowledgment where the notary's
acknowledgment is defective in form, when the signing of the document
by the parties and the parties' acknowledgment are proven, the court
may ignore defects as to the form of the acknowledgment. The party
may, for example, present testimony from the notary to the effect that
his or her customary practice was to ask and confirm that the person
signing the document was the same person named in the document.

Such was proposed by the Appellate Division majority in Galetta, and
we believe that the idea is a good one. By injecting a modicum of
flexibility into the statute, we can continue to ensure that marital

and pre-marital agreements are authentic and are preceded by some
measure of deliberation, while also ensuring that a notary's
inadvertent error does not irrevocably alter the parties' lives.

This measure, which would have no fiscal impact on the public
treasury, would take effect immediately.

Legislative History:

None. New Proposal.