Separating and Reconciling: What Happens Next?

As matrimonial practitioners, the following scenario has confronted many of us: The parties enter into a separation agreement, duly executed and acknowledged, but do not proceed immediately to a divorce. After a futile attempt at reconciliation — during which the parties may have resumed a sexual relationship — an action is brought for a conversion divorce.

As a defense and counterclaim in that action, a claim is made that the parties reconciled, as evidenced by their post-separation conduct, and as a result of which the separation agreement is void ab initio.

The financial stakes are high because the vitiation of the separation agreement starts the clock running again on the acquisition of marital property, and maintenance and child support issues must be re-determined. The purpose of this article is to review the recent case law and explore whether appropriate language in a separation agreement can preclude such a defense or counterclaim in a conversion divorce action based on an alleged reconciliation of the parties.

Recent Case Law

The Second Department's ruling in Pugsley v. Pugsley, 288 A.D.2d 284 (2d Dept. 2001), sets forth the well-settled law in which a party seeks to void a separation agreement based on an alleged post-separation reconciliation:

“To vitiate a separation agreement, there must be a resumption of the marital relationship and proof of an intention to abandon the agreement (see, Sepenoski v. Sepenoski, 188 A.D.2d 457, 591 N.Y.S.2d 63; Rosenhaus v. Rosenhaus, 121 A.D.2d 707,708, 503 N.Y.S.2d 892; Breen v. Breen, 114 A.D.2d 920, 921, 495 N.Y.S.2d 195; Lapidus v. Lapidus, 70 A.D.2d 330, 332, 420 N.Y.S.2d 896; Lotz v. Lotz, 135 A.D.2d 1007, 1009, 522 N.Y.S.2d 730; Lippman v. Lippman, 192 A.D.2d 1060, 1061, 596 N.Y.S.2d 241). However, this rule is grounded upon the presumed intent of the parties, and should not be applied when a contrary intent is clear” (see, Breen v. Breen, supra, citing Matter of Wilson, 50 N.Y.2d 59, 427 N.Y.S.2d 977, 405 N.E.2d 220; Matter of Whiteford, 35 A.D.2d 751, 314 N.Y.S.2d 811).”

It is clear from the case law that the resumption of sexual relations alone does not vitiate a separation agreement. As stated in Pugsley, “[M]ere cohabitation alone does not by itself destroy the validity of the separation agreement.” (See Sepenoski v. Sepenoski, supra; Lapidus v. Lapidus, supra, at 332; Lotz v. Lotz, supra, at 1009; Lippman v. Lippman, supra, at 1061). However, the complete absence of post-separation sexual relations appears to be fatal to an attack on the separation agreement.

In Sepenoski v. Sepenoski, 188 A.D.2d 457, 591 N.Y.S.2d 63 (2d Dept. 1992), the Second Department affirmed the lower court's finding, after a hearing on the issue of intent of the parties, that the separation agreement had not been abandoned. Although the parties continued to reside together post-separation, it was conceded that they had not engaged in sexual relations. In addition, the wife received a salary for her contributions to the family farm. These factors “showed that they were not living together as husband and wife.” Id. at 63, 64.

Likewise, in Thompson v. Thompson, 741 N.Y.S.2d 641 (4th Dept. 2002), the Fourth Department affirmed the lower court's decision denying a motion to set aside the separation agreement that formed the basis of a conversion divorce a year later. In addition to the fact that the parties were divorced for years before an attempt was made to vitiate the agreement, the appellate court emphasized that during the time of alleged cohabitation, the parties never had sexual relations. Thus, while the absence of a sexual relationship will be fatal to an attack on a separation agreement, the existence of such a relationship is one of only several factors to be considered by the court.

In Mullen v. Mullen, 260 A.D.2d 452, 688 N.Y.S.2d 208 (2d Dept. 1999), the Second Department affirmed the lower court's grant of the wife's cross-motion for summary judgment declaring the parties' separation agreement void ab initio. The parties resided together for 7 years after executing the agreement, engaged in sexual relations “on occasion” and took vacations together during that period of time. This was sufficient to negate any triable issue of fact as to whether the parties resumed their marital relationship and exhibited an intention to abandon the agreement.

A similar result was reached in Pasquale v. Pasquale, 210 A.D.2d 387, 620 N.Y.S.2d 95 (2d Dept. 1994). Less than a year after a second separation agreement was executed by the parties, the wife moved back into the marital residence. The parties filed joint tax returns, purchased a new home together, the husband paid the parties' expenses and they socialized as a couple. The Second Department affirmed the lower court's grant of summary judgment to the wife, declaring the two separation agreements void, notwithstanding the husband's claim that the parties never resumed sexual relations.

A contrary result was reached in Pugsley. There, the husband moved back into the marital residence sometime after the separation agreement was signed. Nevertheless, he continued to provide (and his wife to accept) payments under the terms of the separation agreement. The parties kept separate bank accounts, filed separate tax returns and the husband received his mail at a different address.

In addition, and as will be discussed in more detail infra, the agreement specifically provided that any reconciliation must be reduced to a writing. The Appellate Division noted that “No reason has been offered by the plaintiff which would justify ignoring this specific provision of the parties agreement.” Based on all of the above factors, the court determined that the parties' “brief period of cohabitation did not result in a repudiation of the separation agreement.” It is not clear from the decision in Pugsley exactly how much weight was given to the specific clause in the separation agreement requiring that any reconciliation be reduced to a writing, and executed with the same formalities as the agreement itself.

The same approach was taken by the Third Department in the earlier case of Zambito v. Zambito, 171 A.D.2d 918, 566 N.Y.S.2d 789 (3d Dept. 1991). There, the wife contended that after the separation agreement was signed, the parties shared the marital residence only occasionally, and that they did not cohabit. During the same period, the husband continued to have his mail sent to his sister's home, where he resided after the separation. He maintained an answering machine there. He also made regular child support payments. As in Pugsley, the terms of the separation agreement required that any reconciliation be reduced to writing. Based on all of the foregoing factors, the lower court's factual determination that there had not been a mutual understanding of both parties to effectuate an abrogation of the agreement through reconciliation was upheld on appeal.

In Lotz v. Lotz, 135 A.D.2d 1007, 522 N.Y.S.2d 730 (3d Dept. 1987), after entering into a separation agreement, the parties signed an addendum agreement acknowledging an attempt to reconcile but specifically providing that the parties' cohabitation was not to be considered as evidence of an intent to abandon the separation agreement. Their cohabitation was short-lived. As in Pugsley, the Third Department noted that no reason had been offered that would justify ignoring the specific terms of the addendum agreement. It was thus clear, held the court, that the parties intended to maintain the validity of the separation agreement.

The addendum agreement in Lotz was prepared specifically in anticipation of the parties' attempt to reconcile, and they contractually agreed that if such reconciliation failed, the separation agreement would not be affected. This case lends credence to the supposition that the parties may be able to contractually agree in the separation agreement itself that the resumption of marital relations in the future shall not be deemed a reconciliation, and that the agreement will remain unimpaired and in full force and effect.

The rationale for such an argument will be discussed in the May Issue of this newsletter.

As matrimonial practitioners, the following scenario has confronted many of us: The parties enter into a separation agreement, duly executed and acknowledged, but do not proceed immediately to a divorce. After a futile attempt at reconciliation — during which the parties may have resumed a sexual relationship — an action is brought for a conversion divorce.

As a defense and counterclaim in that action, a claim is made that the parties reconciled, as evidenced by their post-separation conduct, and as a result of which the separation agreement is void ab initio.

The financial stakes are high because the vitiation of the separation agreement starts the clock running again on the acquisition of marital property, and maintenance and child support issues must be re-determined. The purpose of this article is to review the recent case law and explore whether appropriate language in a separation agreement can preclude such a defense or counterclaim in a conversion divorce action based on an alleged reconciliation of the parties.

Recent Case Law

The Second Department's ruling in Pugsley v. Pugsley , 288 A.D.2d 284 (2d Dept. 2001), sets forth the well-settled law in which a party seeks to void a separation agreement based on an alleged post-separation reconciliation:

“To vitiate a separation agreement, there must be a resumption of the marital relationship and proof of an intention to abandon the agreement ( see, Sepenoski v. Sepenoski , 188 A.D.2d 457, 591 N.Y.S.2d 63; Rosenhaus v. Rosenhaus , 121 A.D.2d 707,708, 503 N.Y.S.2d 892; Breen v. Breen , 114 A.D.2d 920, 921, 495 N.Y.S.2d 195; Lapidus v. Lapidus , 70 A.D.2d 330, 332, 420 N.Y.S.2d 896; Lotz v. Lotz , 135 A.D.2d 1007, 1009, 522 N.Y.S.2d 730; Lippman v. Lippman , 192 A.D.2d 1060, 1061, 596 N.Y.S.2d 241). However, this rule is grounded upon the presumed intent of the parties, and should not be applied when a contrary intent is clear” (see, Breen v. Breen, supra, citing Matter of Wilson, 50 N.Y.2d 59, 427 N.Y.S.2d 977, 405 N.E.2d 220; Matter of Whiteford, 35 A.D.2d 751, 314 N.Y.S.2d 811).”

It is clear from the case law that the resumption of sexual relations alone does not vitiate a separation agreement. As stated in Pugsley, “[M]ere cohabitation alone does not by itself destroy the validity of the separation agreement.” (See Sepenoski v. Sepenoski, supra; Lapidus v. Lapidus, supra, at 332; Lotz v. Lotz, supra, at 1009; Lippman v. Lippman, supra, at 1061). However, the complete absence of post-separation sexual relations appears to be fatal to an attack on the separation agreement.

In Sepenoski v. Sepenoski , 188 A.D.2d 457, 591 N.Y.S.2d 63 (2d Dept. 1992), the Second Department affirmed the lower court's finding, after a hearing on the issue of intent of the parties, that the separation agreement had not been abandoned. Although the parties continued to reside together post-separation, it was conceded that they had not engaged in sexual relations. In addition, the wife received a salary for her contributions to the family farm. These factors “showed that they were not living together as husband and wife.” Id. at 63, 64.

Likewise, in Thompson v. Thomp son, 741 N.Y.S.2d 641 (4th Dept. 2002), the Fourth Department affirmed the lower court's decision denying a motion to set aside the separation agreement that formed the basis of a conversion divorce a year later. In addition to the fact that the parties were divorced for years before an attempt was made to vitiate the agreement, the appellate court emphasized that during the time of alleged cohabitation, the parties never had sexual relations. Thus, while the absence of a sexual relationship will be fatal to an attack on a separation agreement, the existence of such a relationship is one of only several factors to be considered by the court.

In Mullen v. Mullen , 260 A.D.2d 452, 688 N.Y.S.2d 208 (2d Dept. 1999), the Second Department affirmed the lower court's grant of the wife's cross-motion for summary judgment declaring the parties' separation agreement void ab initio . The parties resided together for 7 years after executing the agreement, engaged in sexual relations “on occasion” and took vacations together during that period of time. This was sufficient to negate any triable issue of fact as to whether the parties resumed their marital relationship and exhibited an intention to abandon the agreement.

A similar result was reached in Pasquale v. Pasquale , 210 A.D.2d 387, 620 N.Y.S.2d 95 (2d Dept. 1994). Less than a year after a second separation agreement was executed by the parties, the wife moved back into the marital residence. The parties filed joint tax returns, purchased a new home together, the husband paid the parties' expenses and they socialized as a couple. The Second Department affirmed the lower court's grant of summary judgment to the wife, declaring the two separation agreements void, notwithstanding the husband's claim that the parties never resumed sexual relations.

A contrary result was reached in Pugsley. There, the husband moved back into the marital residence sometime after the separation agreement was signed. Nevertheless, he continued to provide (and his wife to accept) payments under the terms of the separation agreement. The parties kept separate bank accounts, filed separate tax returns and the husband received his mail at a different address.

In addition, and as will be discussed in more detail infra, the agreement specifically provided that any reconciliation must be reduced to a writing. The Appellate Division noted that “No reason has been offered by the plaintiff which would justify ignoring this specific provision of the parties agreement.” Based on all of the above factors, the court determined that the parties' “brief period of cohabitation did not result in a repudiation of the separation agreement.” It is not clear from the decision in Pugsley exactly how much weight was given to the specific clause in the separation agreement requiring that any reconciliation be reduced to a writing, and executed with the same formalities as the agreement itself.

The same approach was taken by the Third Department in the earlier case of Zambito v. Zambito , 171 A.D.2d 918, 566 N.Y.S.2d 789 (3d Dept. 1991). There, the wife contended that after the separation agreement was signed, the parties shared the marital residence only occasionally, and that they did not cohabit. During the same period, the husband continued to have his mail sent to his sister's home, where he resided after the separation. He maintained an answering machine there. He also made regular child support payments. As in Pugsley, the terms of the separation agreement required that any reconciliation be reduced to writing. Based on all of the foregoing factors, the lower court's factual determination that there had not been a mutual understanding of both parties to effectuate an abrogation of the agreement through reconciliation was upheld on appeal.

In Lotz v. Lotz , 135 A.D.2d 1007, 522 N.Y.S.2d 730 (3d Dept. 1987), after entering into a separation agreement, the parties signed an addendum agreement acknowledging an attempt to reconcile but specifically providing that the parties' cohabitation was not to be considered as evidence of an intent to abandon the separation agreement. Their cohabitation was short-lived. As in Pugsley, the Third Department noted that no reason had been offered that would justify ignoring the specific terms of the addendum agreement. It was thus clear, held the court, that the parties intended to maintain the validity of the separation agreement.

The addendum agreement in Lotz was prepared specifically in anticipation of the parties' attempt to reconcile, and they contractually agreed that if such reconciliation failed, the separation agreement would not be affected. This case lends credence to the supposition that the parties may be able to contractually agree in the separation agreement itself that the resumption of marital relations in the future shall not be deemed a reconciliation, and that the agreement will remain unimpaired and in full force and effect.

The rationale for such an argument will be discussed in the May Issue of this newsletter.