Legal Requirements for Matrimonial Agreements

New York Domestic Relations Law

Fall 2020

McKinney’s DRL § 236  Special controlling provisions; prior actions or proceedings; new actions or proceedings  PART B -NEW ACTIONS OR PROCEEDINGS

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3.  Agreement of the parties. An 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. 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. Such an agreement may include 

(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; 

(2) provision for the ownership, division or distribution of separate and marital property; 

(3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and 

(4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article. 

Nothing in this subdivision shall be deemed to affect the validity of any agreement made prior to the effective date of this subdivision.

4. Compulsory financial disclosure. a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice in writing demanding the same, within twenty days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the court by each party, within ten days after joinder of issue, in the court in which the proceeding is pending. …

McKinney's General Obligations Law § 3-303. Contracts in contemplation of marriage

A contract made between persons in contemplation of marriage, remains in full force after the marriage takes place.    (L.1963, c. 576, § 1.)

McKinney's General Obligations Law § 5-311. Certain agreements between husband and wife void

Except as provided in section two hundred thirty-six of the domestic relations law, a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge. An agreement, heretofore or hereafter made between a husband and wife, shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds of divorce.    (Added L.1980, c. 281, § 19.)

Sample Language:

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ARTICLE XVIII

EXECUTION

This Agreement may be executed simultaneously in counterparts, each of which shall be deemed to be an original.

IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written to four counterparts hereof, each of which shall constitute an original.   

ACKNOWLEDGMENTS

On the _____ day of _____________________, 20___, before me, the undersigned, a Notary Public in and for said state, personally appeared _______________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she or he executed the same in her or his capacity, and that by her or his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.