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Statute of Limitations for Pre-, Postnuptial Agreements
Effective July 3, 2007, a new ' 250 was added to the Domestic Relations Law. (Some of us will recall that DRL ' 250 was the statutory designation for the Full Financial Disclosure provision which was repealed on July 19, 1980, the effective date of DRL 236(B), popularly known as the Equitable Distribution Law, which incorporated and expanded its provisions as DRL ' 236(B)(4).) The new section reads:
The statute of limitations for commencing an action or proceeding or for claiming a defense that arises from an agreement made pursuant to subdivision three of Part B of section two hundred thirty-six of this article entered into (a) prior to a marriage or (b) during the marriage, but prior to the service of process in a matrimonial action or proceeding, shall be three years.
1. The statute of limitations shall be tolled until (a) process has been served in such matrimonial action or proceeding, or (b) the death of one of the parties.
2. The provisions of this section shall not apply to a separation agreement or an agreement made during the pendency of a matrimonial action or in settlement thereof.
3. This enactment clarifies the statute of limitations issue that has bedeviled our courts for a score of years.
Initial Conflict in Departments
When DRL 236(B) was enacted, effective July 19, 1980, subparagraph 3) authorized, for the first time, agreements 'made before or during the marriage' which could 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 ' 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 ' ' as well as provisions for custody, support of children of the marriage pursuant to DRL ' 240.
Prior to July 19, 1980, prenuptial agreements most frequently dealt with estate waivers, usually to preserve the right of a husband or wife to protect the children of his or her first marriage from the statutory right of election accruing to the second spouse. Provisions for division of property were rare since, prior to July 19, 1989, title controlled. This left little need to obtain contractual protection. Titling of property was sufficient to ensure its distribution to the title holder upon a divorce, or its division if the parties chose a form of joint title. And, provisions which limited the husband's (before the statute became a gender neutral) ability to contract to relieve the husband from his liability to support the wife, by and large barred any provisions as to maintenance (then called 'alimony'). GOL 5-311, enacted July 19, 1980.
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The Article 8 Opt In
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