An Update on Prenuptial and No-Fault Divorce Legislation

The session law had read:

This act shall take effect on the same date [July 3, 2007] as a chapter [L.2007, c. 104] of the laws of 2007 amending the domestic relations law relating to the statute of limitations for agreements relating to marriage, as proposed in legislative bills numbers S.4564 and A.3074, takes effect; and shall not apply to any agreement where the commencement of an action thereon was barred under the civil practice law and rules in effect immediately prior to such effective date. (Emphasis supplied.)

DRL ' 250 was intended to resolve the discrepancy between the First and Second Departments as to whether or not the statute of limitations tolled on the challenging of pre- and post-nuptial agreements in an intact marriage. The First Department had said it did, while the Second said it did not. The Court of Appeals in Bloomfield v. Bloomfield, 97 NY2d 188 (2001), side-stepped the issue, instead using CPLR 203(d) to find that a statutorily barred agreement would be challengeable if used by a defendant in response to the plaintiff's attempt to ask for its enforcement. That holding was then reiterated by the Second Department in DeMille v. DeMille, 5 A.D.3d 428 (2d Dept 2004).

Given the equivocal language of the prior session law, it was arguable that under the prior version of DRL ' 250, the statute did not apply to agreements in which an action thereon would have been time-barred under the six-year statute of limitations in CPLR 213. Accordingly, it appeared that if on July 2, 2007 the six-year statute of limitations had expired, that agreement would not have been subject to attack nor was the tolling applicable to it. Alternatively, it could be argued that the session law intended that actions on agreements which were barred as of July 3, 2007 would still have been barred, but that actions not as yet commenced on those agreements (even if the agreement is over six years old) benefit from the tolling.

After two attempts then to fashion a clear statute tolling the statute of limitations on challenging prenuptial and postnuptial agreements during intact marriages, the third was the charm. On May 23 of this year, Governor David A. Paterson signed a second amendment to DRL ' 250. This time, the session law states:

' 2. Section 2 of chapter 226 of the laws of 2007 amending the domestic relations law relating to agreements relating to marriage, is amended to read as follows:

' 2. This act shall take effect on the same date as {a} chapter 104 of the laws of 2007 {amending the domestic relations law relating to the statute of limitations for agreements relating to marriage, as proposed in legislative bills numbers S.4564 and A.3074,} takes effect; and shall not apply to any agreement where the commencement of an action thereon was PREVIOUSLY barred BY A COURT under the civil practice law and rules in effect immediately prior to such effective date. (emphasis in session law)

This final revision appears to plug the hole in the last two revisions of the statute that was signed back to back on the same day, July 3, 2007. Owing to the efforts of its sponsor, Assemblyman Adam Bradley (D-Westchester), DRL ' 250 now makes it clear that the three-year statute of limitations on such agreements tolls unless a court had barred the agreement under the old six-year statute. It should be noted however, that the new session law still references the effective date of the statute as being the same as the prior versions, to wit: July 3, 2007. Given the recently enacted second amendment then, leave to renew under CPLR 2221, should be available if between July 3, 2007 and May 23, 2008, a court (presumably in the second department) time-barred challenge to an agreement which was more that six years old as of July 3.

The Ongoing Stagnation of No-Fault Divorce Legislation

Speaking of Assemblyman Bradley, his efforts to generate a no-fault divorce bill remains embedded in political morass among those in the legislature who do not understand the realities of matrimonial litigation and the archaic nature of our fault system ' the only one that still exists in the United States of America. The Bradley Bill (A 9398-A) is awaiting a co-sponsor in the Senate, and reintroduction. The bill reads succinctly and without entanglement or linkage to other proposed legislative changes which are complicated and far reaching. It ensures that no- fault divorce and no-fault divorce alone is enacted. Ongoing debate may still be had on other issues that are more intricate and need time to be discussed without holding up no-fault. Its text is as follows:

Section 1. Section 170 of the domestic relations law is amended by adding a new subdivision 7 to read as follows:

(7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Except under exigent circumstances placed on the record by the court, no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts` fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

s 2. This act shall take effect immediately.

It is of note that the bill provides for an “irreconcilable differences” type of ground for divorce after a period of six months, but also stays the entry of judgment until the major custodial and financial issues are resolved. It thoroughly allows for a divorce without requiring the cost, expense, time and emotional turmoil affiliated with contested grounds and a trial thereof. It permits the end of dead marriages and the blackmail of our current system, in which one may have to “pay for one's freedom.” Simultaneously, it ensures however, that no one will be able to avoid their financial responsibilities or equitable distribution of the parties' marital assets. This legislation is supported by the Women's Bar Association of New York, by the New York State Bar Association, by the New York Chapter of the American Academy of Matrimonial Lawyers and by major local bar associations throughout the State.

Since 1783, New York's divorce statute has had only one amendment ' the Divorce Reform Act of 1966, which expanded the grounds from adultery as the only ground, to the present grounds set forth in DRL ' 170. The Bradley Bill does not eliminate the other grounds for divorce that presently exist, thereby permitting other grounds to be pleaded either along with the new ground or by counterclaim. Thus, parties who wish to bring other issues to the forefront may still do so, either on a grounds basis or in support of custody, equitable distribution or support claims.

A Call for Action

It is now past time for the rest of the legislature to follow suit and come to recognize the absurdity of a system that actually fosters the commission of perjury on a regular basis by forcing those who wish to divorce to swear to a non-existent “constructive abandonment” on one hand and which, on the other, binds two people to each other in perpetuity where agreement cannot be reached.

A recent forum on the need for no-fault divorce, along with meetings with many legislators, was held at the New York State Legislature in Albany. The forum was presented by the New York State Office of Court Administration Office of Matrimonial and Family Law Study and Reform led by Hon. Sandra Miller. But while the issue of no-fault divorce continues to be argued, it remains un-acted upon and presently has no senate sponsor.

It may be time for matrimonial practitioners who wish to lend their support for the passage of this legislation to contact their local legislators, many of whom, like the public at large, thought we already have some form of “irreconcilable differences” divorce in this State. The common-sense approach of the 49 other states must have some significance. I submit that it is time we saw the light in New York.

Lee Rosenberg is a partner with Saltzman Chetkof & Rosenberg LLP in Garden City, a fellow of the American Academy of Matrimonial Lawyers and a member of this newsletter's Board of Editors.

The issue of legislative action (or inaction as the case may be) in matrimonial matters is always of interest. At present, there are many issues that call for such action and others that are still kicking hopelessly around in this election year. Two such issues come to mind just now, one finally resolved, the other apparently destined to “wait 'till next year.”

The Third and Final Version Of DRL ' 250

In an article appearing in this publication's May 2008 issue titled “For Whom the Prenuptial Tolls: Does the New DRL ' 250 Really Put an End to the Discussion?” (New York Family Law Monthly, Vol 9, No 9 (May 2008)), I discussed the problems with the prior incarnation of the statute that had been signed into law on July 3, 2007 and then amended the same day. (The article was written prior to the final version of DRL ' 250 being approved by the legislature and being signed into law. It also came about after my conversation in December 2007 with Assemblyman Adam Bradley in which the conflict within the second version of DRL ' 250 was discussed.) To recap, despite the first amendment to the statute, the provisions of the session law remained the same: The statute set a three-year statute of limitations on challenges to prenuptial and postnuptial agreement that tolled during an intact marriage, thus superceding the prior six-year statute of limitations of CPLR 213. That session law, however, left a gaping discrepancy in the application of DRL ' 250 depending upon one's interpretation of its language and which judicial department you were litigating in.

The session law had read:

This act shall take effect on the same date [July 3, 2007] as a chapter [L.2007, c. 104] of the laws of 2007 amending the domestic relations law relating to the statute of limitations for agreements relating to marriage, as proposed in legislative bills numbers S.4564 and A.3074, takes effect; and shall not apply to any agreement where the commencement of an action thereon was barred under the civil practice law and rules in effect immediately prior to such effective date. (Emphasis supplied.)

DRL ' 250 was intended to resolve the discrepancy between the First and Second Departments as to whether or not the statute of limitations tolled on the challenging of pre- and post-nuptial agreements in an intact marriage. The First Department had said it did, while the Second said it did not. The Court of Appeals in Bloomfield v. Bloomfield , 97 NY2d 188 (2001), side-stepped the issue, instead using CPLR 203(d) to find that a statutorily barred agreement would be challengeable if used by a defendant in response to the plaintiff's attempt to ask for its enforcement. That holding was then reiterated by the Second Department in DeMille v. DeMille , 5 A.D.3d 428 (2d Dept 2004).

Given the equivocal language of the prior session law, it was arguable that under the prior version of DRL ' 250, the statute did not apply to agreements in which an action thereon would have been time-barred under the six-year statute of limitations in CPLR 213. Accordingly, it appeared that if on July 2, 2007 the six-year statute of limitations had expired, that agreement would not have been subject to attack nor was the tolling applicable to it. Alternatively, it could be argued that the session law intended that actions on agreements which were barred as of July 3, 2007 would still have been barred, but that actions not as yet commenced on those agreements (even if the agreement is over six years old) benefit from the tolling.

After two attempts then to fashion a clear statute tolling the statute of limitations on challenging prenuptial and postnuptial agreements during intact marriages, the third was the charm. On May 23 of this year, Governor David A. Paterson signed a second amendment to DRL ' 250. This time, the session law states:

' 2. Section 2 of chapter 226 of the laws of 2007 amending the domestic relations law relating to agreements relating to marriage, is amended to read as follows:

' 2. This act shall take effect on the same date as {a} chapter 104 of the laws of 2007 {amending the domestic relations law relating to the statute of limitations for agreements relating to marriage, as proposed in legislative bills numbers S.4564 and A.3074,} takes effect; and shall not apply to any agreement where the commencement of an action thereon was PREVIOUSLY barred BY A COURT under the civil practice law and rules in effect immediately prior to such effective date. (emphasis in session law)

This final revision appears to plug the hole in the last two revisions of the statute that was signed back to back on the same day, July 3, 2007. Owing to the efforts of its sponsor, Assemblyman Adam Bradley (D-Westchester), DRL ' 250 now makes it clear that the three-year statute of limitations on such agreements tolls unless a court had barred the agreement under the old six-year statute. It should be noted however, that the new session law still references the effective date of the statute as being the same as the prior versions, to wit: July 3, 2007. Given the recently enacted second amendment then, leave to renew under CPLR 2221, should be available if between July 3, 2007 and May 23, 2008, a court (presumably in the second department) time-barred challenge to an agreement which was more that six years old as of July 3.

The Ongoing Stagnation of No-Fault Divorce Legislation

Speaking of Assemblyman Bradley, his efforts to generate a no-fault divorce bill remains embedded in political morass among those in the legislature who do not understand the realities of matrimonial litigation and the archaic nature of our fault system ' the only one that still exists in the United States of America. The Bradley Bill (A 9398-A) is awaiting a co-sponsor in the Senate, and reintroduction. The bill reads succinctly and without entanglement or linkage to other proposed legislative changes which are complicated and far reaching. It ensures that no- fault divorce and no-fault divorce alone is enacted. Ongoing debate may still be had on other issues that are more intricate and need time to be discussed without holding up no-fault. Its text is as follows:

Section 1. Section 170 of the domestic relations law is amended by adding a new subdivision 7 to read as follows:

(7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Except under exigent circumstances placed on the record by the court, no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts` fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

s 2. This act shall take effect immediately.

It is of note that the bill provides for an “irreconcilable differences” type of ground for divorce after a period of six months, but also stays the entry of judgment until the major custodial and financial issues are resolved. It thoroughly allows for a divorce without requiring the cost, expense, time and emotional turmoil affiliated with contested grounds and a trial thereof. It permits the end of dead marriages and the blackmail of our current system, in which one may have to “pay for one's freedom.” Simultaneously, it ensures however, that no one will be able to avoid their financial responsibilities or equitable distribution of the parties' marital assets. This legislation is supported by the Women's Bar Association of New York, by the New York State Bar Association, by the New York Chapter of the American Academy of Matrimonial Lawyers and by major local bar associations throughout the State.

Since 1783, New York's divorce statute has had only one amendment ' the Divorce Reform Act of 1966, which expanded the grounds from adultery as the only ground, to the present grounds set forth in DRL ' 170. The Bradley Bill does not eliminate the other grounds for divorce that presently exist, thereby permitting other grounds to be pleaded either along with the new ground or by counterclaim. Thus, parties who wish to bring other issues to the forefront may still do so, either on a grounds basis or in support of custody, equitable distribution or support claims.

A Call for Action

It is now past time for the rest of the legislature to follow suit and come to recognize the absurdity of a system that actually fosters the commission of perjury on a regular basis by forcing those who wish to divorce to swear to a non-existent “constructive abandonment” on one hand and which, on the other, binds two people to each other in perpetuity where agreement cannot be reached.

A recent forum on the need for no-fault divorce, along with meetings with many legislators, was held at the New York State Legislature in Albany. The forum was presented by the New York State Office of Court Administration Office of Matrimonial and Family Law Study and Reform led by Hon. Sandra Miller. But while the issue of no-fault divorce continues to be argued, it remains un-acted upon and presently has no senate sponsor.

It may be time for matrimonial practitioners who wish to lend their support for the passage of this legislation to contact their local legislators, many of whom, like the public at large, thought we already have some form of “irreconcilable differences” divorce in this State. The common-sense approach of the 49 other states must have some significance. I submit that it is time we saw the light in New York.

Lee Rosenberg is a partner with Saltzman Chetkof & Rosenberg LLP in Garden City, a fellow of the American Academy of Matrimonial Lawyers and a member of this newsletter's Board of Editors.