Settlement in Chambers

In the first part of this article, we began discussion of the “open court” exception (Civil Practice Law & Rules (CPLR) ' 2104) to the Equitable Distribution Law's requirement that, to be enforceable, matrimonial agreements made before or during a marriage must be reduced to writing, subscribed by the parties and acknowledged or proven in the manner required to entitle a deed to be recorded. See Domestic Relations Law (DRL) ' 236(B)(3). (DRL ' 170(6) sets forth a similar requirement for separation agreements used for a conversion divorce.) The open court exception allows recognition of such agreements even though not in writing, etc., so long as they are the subject of court proceedings and certain other requirements are met.

But, as we saw in Dolgin Eldert Corp. v. Dolgin, 31 NY2d 1 (1972), oral agreements referred to by a court will not be deemed sufficient to overcome the requirements of DRL ' 236(B)(3). In fact, Dolgin and its progeny, make clear that the “open-court” exception applies only where an agreement, despite being oral, is nonetheless recorded in an official manner. See 105 N.Y. Jur. 2d Trials ' 234 (“The exception of oral agreements in open court is based on the underlying consideration that such agreements are memorialized by an authentic writing in the form of a court record, and when the exception is extended to oral agreements reached in a judge's chambers, it is permitted only when a stenographic record is made of the agreement, giving proof of the substance and fact of the parties' agreement; in the absence of a stenographic record of the stipulation, it is not binding.”).