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Reconciliation and Settlement
It is not uncommon for a couple to reconcile. The issue is what, if any, impact the couple's reconciliation has on their settlement agreement. The answer is: It depends.
A married couple may enter into a contractual arrangement, including, but not limited to, a separation agreement. “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” Domestic Relations Law ' 236B(3). New York State, for example, has a “strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements.” In Re Estate of Greiff, 92 N.Y.2d 341 (1998). “Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside.” Christian v. Christian, 42 N.Y.2d 63 (1977). “Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of ' settlement provisions.” Id.
The reconciliation of a married couple, however, can render their separation agreement void. Matter of Estate of Whitefor , 35 A.D.2d 751 (3rd Dept. 1970). Historically, “articles of separation between husband and wife ' although valid when made, are rendered void by resumption by them of their conjugal relation.” Zimmer v. Settle, 124 N.Y. 37 (1891). It was not entirely clear at that time what was essential to reconciliation, as it did not depend upon “any particular degree of reciprocal affection or esteem” between husband and wife and it might arise from “appreciation and observance by them of their marital duty to each other.” Id.
Reconciliation Defined
Reconciliation is now defined as the parties' resumption of cohabitation and marital relations. See Matter of Estate of Whiteford, supra. Although the term “cohabitation” does not appear to have a “plain” meaning, it has been variously defined as “living together as husband and wife” and as “engaging in sexual intercourse.” Graev v. Graev' 11 N.Y.3d 262 (2008); Lapidus v. Lapidus, 70 A.D.2d 330 (1st Dept. 1979). But “mere cohabitation” of the parties does not by itself invalidate a separation agreement. Thompson v. Thompson, 294 A.D.2d 943 (4th Dept. 2002).
The reconciliation must additionally be accompanied by intent to abandon the separation agreement. See Matter of Estate of Whiteford, supra. “What is required is such a resumption of the marital relation as to indicate an intention to abandon the agreement.” Id . “Abandonment may be shown circumstantially, by proof of the parties' resumption of the marital relationship by unequivocal acts.” Lippman v. Lippman, 192 A.D.2d 1060 (4th Dept. 1993). There must be “sufficient proof from which it can be inferred” that the parties intended to reconcile and thereby intended to abandon the separation agreement. Id .
The rationale for this rule is that, “once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status ' it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall.” Matter of Estate of Wilson, 50 N.Y.2d 59 (1980). However, with the rule being grounded upon the presumed intent of the parties, it should not be applied if and when a contrary intent is indicated by the acts and expressions of the parties. Breen v. Breen, 114 A.D.2d 920 (2nd Dept. 1985). The existence of intent is primarily a factual question to be decided by the trier of fact and to be upset only if lacking support in the record. Matter of Estate of Whiteford, supra.
Relevant Factors
The relevant inquiry therefore becomes what acts and expressions amount to the reconciliation of a married couple with an intent to abandon their separation agreement, or in other instances, the reconciliation of a divorced couple with an intent to abandon their stipulation of settlement. A survey of the case law that has come down over the last 40 years reveals the same acts and expressions being cited over and over again as dispositive of the issue, with those acts and expressions originally stemming from estate cases and then being subsequently developed through matrimonial cases. The recurring acts and expressions consist of the parties living together, sharing the same bed, having sexual relations, worshipping together, attending business functions together, socializing together, vacationing together, sharing property, filing joint tax returns, estate planning together, death planning together, and ignoring obligations to each other under their settlement agreement.
Invalidated Agreements
There are a number of cases where the court invalidates the parties' settlement agreement due to their reconciliation with the intent to abandon it. See, e.g., Matter of Estate of Whiteford, supra (the parties resumed living together for over 12 years, and during that time, they carried on normal marital relations, attended church together, accompanied each other on business and social functions, filed joint tax returns, and jointly purchased a mausoleum crypt); Berger v. Estate of Berger, 203 A.D.2d 502 (2nd Dept. 1994) (the parties resumed living together, and during the last year of the husband's life, the wife travelled with him and cared for him when he became ill); Pasquale v. Pasquale, 210 A.D.2d 387 (2nd Dept. 1994) (the parties moved back into the marital residence together and later purchased another home together, even though they never resumed sexual relations); Rudansky v. Rudansky, 223 A.D.2d 500 (1st Dept. 1996) (the parties sold their separate apartments to purchase a new apartment together and that the wife quit her job to resume her role as homemaker); Mullen v. Mullen, 260 A.D.2d 452 (2nd Dept. 1999) (the parties resumed living together for seven years, engaged in sexual relations on occasion, and took vacations together); Arminas v. Arminas, 2001 NY Slip Op 40554U (Supreme Ct. Richmond Co.) (the parties executed loan documents mortgaged by real property held by them as tenants by the entirety and named each other as an estate beneficiary in their respective wills); Iwanow v. Iwanow, 39 A.D.3d 471 (2nd Dept. 2007) (the parties shared bank accounts and filed joint tax returns); and Walter S. v. Kim S., 19 Misc.3d 1120(A) (Supreme Ct. Delaware Co. 2008) (throughout the time the parties resumed living together, the wife never directed her attorney to submit the findings and the judgment).
Upheld Agreements
Similarly, there are just as many cases where the court upholds the validity of the parties' settlement agreement due to their failure to reconcile with the intent to abandon it. See, e.g., Mason v. Mason, 69 A.D.2d 942 (3rd Dept. 1979) (the parties only resumed cohabitation for a short period of time and the husband never even alleged that they intended to reconcile); Rosenhaus v. Rosenhaus, 121 A.D.2d 707 (2nd Dept. 1986) (the parties lived together for just a short period of time and the husband never gave up his separate apartment); Lotz v. Lotz, 135 A.D.2d 1007 (3rd Dept. 1987) (the parties had executed an addendum agreement that specifically provided that their cohabitation would not be considered as evidence of an intent to abandon their settlement agreement); Sepenoski v. Sepenoski, 188 A.D.2d 457 (2nd Dept. 1992) (although the parties lived in the same house for four years and the wife continued to cook, clean, and wash just as she always had, they did not engage in sexual relations, and the wife received a salary for working on the family farm); Lippman v. Lippman, 192 A.D.2d 1060 (4th Dept. 1993) (the wife could not explain why, if the parties reconciled, they maintained separate residences and why, if the parties intended to abandon the agreement, they continued to abide by its financial terms); Thompson v. Thompson , 294 A.D.2d 943 (4th Dept. 2002) (although the parties intermittently lived under the ame roof, they came and went as they pleased, maintained separate bedrooms, never had sexual relations, did not share bank accounts or personal belongings, and filed separate tax returns); Russo v. Russo, 305 A.D.2d 486 (2nd Dept. 2003) (although the parties lived together briefly, their conduct demonstrated a mutual acknowledgment that the marriage was dead); and E.C. v. L.C., 41 Misc.3d 1050 (Supreme Ct. Nassau Co. 2013) (the wife moved out of the marital bedroom; the parties never engaged in sexual relations; they slept in separate bedrooms while on vacation, they stopped sharing meals together; they did not attend functions for each other's family such as birthday parties, wakes, and weddings, and although they continued to maintain a joint bank account, it was only done as a matter of convenience).
Fact-Driven Findings
As the foregoing case law makes clear, the issue of whether a couple has reconciled with the intent to abandon their settlement agreement is very fact specific and equity driven. The answer depends upon whether the parties continuously held themselves out as a married couple or whether they lived entirely separate and distinct lives. Between those opposite ends of the spectrum, there is a sizeable gray area encompassing all kinds of mixed behavior that is fertile for litigation.
An interesting wrinkle on the issue arises if and when a settlement agreement provides that any change to its provisions must be documented in writing. For example, there is often a provision as follows: “This Agreement shall not be invalidated or otherwise affected by a reconciliation between the parties hereto, or a resumption of marital relations between them, unless said reconciliation or said resumption be documented by a written statement executed and acknowledged by the parties with respect to said reconciliation or resumption and, in addition, setting forth that they are cancelling this Agreement.” The case law appears to be divided as to whether a couple's reconciliation, without such a required writing cancelling their settlement agreement, may still result in the invalidation of that agreement.
See, e.g., Matter of Estate of Wilson, supra (holding that modification clauses in a settlement agreement are not to be taken to render specific provisions independently enforceable when the agreement itself, rather than any of its components, is brought to an end); Katz v. Beckman, 302 A.D.2d 561 (2nd Dept. 2003) (intimating that, although the parties' settlement agreement required the execution of a writing to invalidate it, their conduct established a reconciliation so as to permit invalidation without such a writing, except that the parties executed a written memorandum after their reconciliation acknowledging the existence of the settlement agreement, which they would not have done if they intended to abandon same); and Matter of Estate of Britcher, 38 A.D.3d 1223 (4th Dept. 2007) (finding that the provision in the settlement agreement that it shall not be invalidated without a subsequent writing is itself void and cannot be taken to render specific provisions of the agreement independently enforceable where, as here, the agreement itself, rather than any of its components, is brought to an end).
But see cf. Brown v. Brown, 1988 N.Y. Misc. LEXIS 419 (Supreme Ct. Suffolk Co.) (finding that, although the parties behavior evidenced an apparent reconciliation, their settlement agreement required the execution of a writing to invalidate it, so there was no need to look at their acts and expressions, as a contrary intent had already been clearly expressed by them); Pugsley v. Pugsley, 288 A.D.2d 284 (2nd Dept. 2001) (a provision of the settlement agreement required that any reconciliation be reduced to writing and no reason had been offered by the wife to justify ignoring that specific provision); and Sifre v. Sifre, 61 A.D.3d 1324 (3rd Dept. 2009) (while the parties' affidavits raised questions of fact concerning whether they reconciled, that issue was irrelevant in the face of the contract language requiring a written termination of the agreement).
Practice Tips
A number of practice tips should helpful to those attorneys who represent a client facing the issue of invalidating a settlement agreement based upon the couple's reconciliation.
1. If the settlement agreement requires the execution of a writing to invalidate it, then the client should arrange for the execution of the writing, regardless of how uncomfortable it may be to pursue while the couple is reconciling.
2. In the event that a writing is not executed, then the client's acts and expressions should evidence continuing to live as a married couple in contravention of the settlement agreement, not separate and distinct lives pursuant to that agreement.
3. Under no circumstances should the client execute a writing acknowledging the existence of the settlement agreement or providing that the couple's reconciliation will not be considered evidence of an intent to abandon that agreement.
4. In the event that there is no reconciliation with an intent to abandon the settlement agreement, the client may still be able to pursue less comprehensive relief from that agreement under the legal doctrines of “oral modification” and “waiver,” doctrines that warrant their own treatment in another article.
It is not uncommon for a couple to reconcile. The issue is what, if any, impact the couple's reconciliation has on their settlement agreement. The answer is: It depends.
A married couple may enter into a contractual arrangement, including, but not limited to, a separation agreement. “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” Domestic Relations Law ' 236B(3).
The reconciliation of a married couple, however, can render their separation agreement void. Matter of Estate of Whitefor , 35 A.D.2d 751 (3rd Dept. 1970). Historically, “articles of separation between husband and wife ' although valid when made, are rendered void by resumption by them of their conjugal relation.”
Reconciliation Defined
Reconciliation is now defined as the parties' resumption of cohabitation and marital relations. See Matter of Estate of Whiteford, supra. Although the term “cohabitation” does not appear to have a “plain” meaning, it has been variously defined as “living together as husband and wife” and as “engaging in sexual intercourse.”
The reconciliation must additionally be accompanied by intent to abandon the separation agreement. See Matter of Estate of Whiteford, supra . “What is required is such a resumption of the marital relation as to indicate an intention to abandon the agreement.” Id . “Abandonment may be shown circumstantially, by proof of the parties' resumption of the marital relationship by unequivocal acts.”
The rationale for this rule is that, “once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status ' it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall.” Matter of Estate of Wilson, 50 N.Y.2d 59 (1980). However, with the rule being grounded upon the presumed intent of the parties, it should not be applied if and when a contrary intent is indicated by the acts and expressions of the parties.
Relevant Factors
The relevant inquiry therefore becomes what acts and expressions amount to the reconciliation of a married couple with an intent to abandon their separation agreement, or in other instances, the reconciliation of a divorced couple with an intent to abandon their stipulation of settlement. A survey of the case law that has come down over the last 40 years reveals the same acts and expressions being cited over and over again as dispositive of the issue, with those acts and expressions originally stemming from estate cases and then being subsequently developed through matrimonial cases. The recurring acts and expressions consist of the parties living together, sharing the same bed, having sexual relations, worshipping together, attending business functions together, socializing together, vacationing together, sharing property, filing joint tax returns, estate planning together, death planning together, and ignoring obligations to each other under their settlement agreement.
Invalidated Agreements
There are a number of cases where the court invalidates the parties' settlement agreement due to their reconciliation with the intent to abandon it. See, e.g., Matter of Estate of Whiteford, supra (the parties resumed living together for over 12 years, and during that time, they carried on normal marital relations, attended church together, accompanied each other on business and social functions, filed joint tax returns, and jointly purchased a mausoleum crypt);
Upheld Agreements
Similarly, there are just as many cases where the court upholds the validity of the parties' settlement agreement due to their failure to reconcile with the intent to abandon it. See, e.g.,
Fact-Driven Findings
As the foregoing case law makes clear, the issue of whether a couple has reconciled with the intent to abandon their settlement agreement is very fact specific and equity driven. The answer depends upon whether the parties continuously held themselves out as a married couple or whether they lived entirely separate and distinct lives. Between those opposite ends of the spectrum, there is a sizeable gray area encompassing all kinds of mixed behavior that is fertile for litigation.
An interesting wrinkle on the issue arises if and when a settlement agreement provides that any change to its provisions must be documented in writing. For example, there is often a provision as follows: “This Agreement shall not be invalidated or otherwise affected by a reconciliation between the parties hereto, or a resumption of marital relations between them, unless said reconciliation or said resumption be documented by a written statement executed and acknowledged by the parties with respect to said reconciliation or resumption and, in addition, setting forth that they are cancelling this Agreement.” The case law appears to be divided as to whether a couple's reconciliation, without such a required writing cancelling their settlement agreement, may still result in the invalidation of that agreement.
See, e.g., Matter of Estate of Wilson, supra (holding that modification clauses in a settlement agreement are not to be taken to render specific provisions independently enforceable when the agreement itself, rather than any of its components, is brought to an end);
But see cf. Brown v. Brown, 1988 N.Y. Misc. LEXIS 419 (Supreme Ct. Suffolk Co.) (finding that, although the parties behavior evidenced an apparent reconciliation, their settlement agreement required the execution of a writing to invalidate it, so there was no need to look at their acts and expressions, as a contrary intent had already been clearly expressed by them);
Practice Tips
A number of practice tips should helpful to those attorneys who represent a client facing the issue of invalidating a settlement agreement based upon the couple's reconciliation.
1. If the settlement agreement requires the execution of a writing to invalidate it, then the client should arrange for the execution of the writing, regardless of how uncomfortable it may be to pursue while the couple is reconciling.
2. In the event that a writing is not executed, then the client's acts and expressions should evidence continuing to live as a married couple in contravention of the settlement agreement, not separate and distinct lives pursuant to that agreement.
3. Under no circumstances should the client execute a writing acknowledging the existence of the settlement agreement or providing that the couple's reconciliation will not be considered evidence of an intent to abandon that agreement.
4. In the event that there is no reconciliation with an intent to abandon the settlement agreement, the client may still be able to pursue less comprehensive relief from that agreement under the legal doctrines of “oral modification” and “waiver,” doctrines that warrant their own treatment in another article.
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