Was a pre-nuptial agreement enforceable where the agreement was not properly acknowledged? Answer: No.
In Galetta v. Galetta, 21 NY3d 186 (2013), a matrimonial action, plaintiff Michelle Galetta sought a determination that a prenuptial agreement that she and defendant Gary Galetta signed was invalid due to a defective acknowledgment. Supreme Court denied plaintiff’s motion for summary judgment; a divided Appellate Division affirmed on other grounds; and the Court of Appeals reversed, granted plaintiff’s motion for summary judgment and determined that the parties’ prenuptial agreement was invalid.
Domestic Relations Law § 236(B)(3) provides that to be valid and enforceable, a prenuptial agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” Id. at 191.
Looking to the Real Property Law for guidance, the Court of Appeals noted that Section 291 thereof governs the recording of deeds and requires that “‘[a] conveyance of real property…on being duly acknowledged by the person executing the same, or proved as required by this chapter,…may be recorded in the office of the Clerk of the County where such real property is situated.’ Id. Real Property Law § 292 “requires that the party signing the document orally acknowledge to the notary public or other officer that he or she in fact signed the document. Real Property Law § 303 precludes an acknowledgment from being taken by a notary or other officer ‘unless he [or she] knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument.” And Real Property Law § 306 compels the notary or other officer to execute ‘a certificate…stating all the matters required to be done, known or proved’ and to endorse or attach that certificate to the document.” Id. at 192.
When the prenuptial agreement was signed in 1997, the form of acknowledgment of the wife’s signature recited that “before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same.” Id. at 193.
In marked contrast, the certificate of acknowledgment of the husband’s signature “inexplicably omitted” the phrase “to me known and known to me”[.]. Id.
Plaintiff wife claimed that the prenuptial agreement was unenforceable because the husband’s acknowledgment was defective. Defendant husband claimed that the acknowledgement “substantially complied” with the requirements of the Real Property Law. The Court noted that “[s]ince one acknowledgment included all the requisite language and the other did not, it seems likely that the omission resulted from a typographical error[,]”. Id. at 196 The Court also characterized the “to me known and known to me” phrase as “a core component of a valid acknowledgment[.]”. Id. at 194.
The Court of Appeals noted that “a party can rely on custom and practice evidence to fill in evidentiary gaps ‘where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances’[.]”. Id. at 197. In this case, the proof of “custom and practice” to “resolve the question of whether a cure is possible” was deemed insufficient because “[i]n his affidavit, the notary public did not state that he actually recalled having acknowledged the husband’s signature, nor did he indicate that he knew the husband prior to acknowledging his signature.” Id.
While asserting that he recognized his own signature on the certificate, “the notary had no independent recollection [of the event] but maintained that it was his custom and practice ‘to ask and confirm that the person signing the document was the same person named in the document,’ and he was ‘confident’ he had done so when witnessing the husband’s signature”. Id.
The Court of Appeals concluded that “the averments presented by the notary public in this case [were] too conclusory [to demonstrate a deliberate and repetitive practice]”. Instead, “the affidavit by the notary public in this case merely paraphrased the requirement of the statute – he stated it was his practice to ‘ask and confirm’ the identity of the signer – without detailing any specific procedure that he routinely followed to fulfill that requirement”. Id. at 197-98.
The Court of Appeals concluded that “[a]s such, even assuming a defect in a certificate of acknowledgment could be cured under Domestic Relations Law § 236(B)(3), defendants’ submission was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure.” Id. at 198.