Economic Contribution of Parties to Marriage and Equitable Distribution

Most to the time, when the courts engage in equitable distribution, the marital property is likely to be distributed equally. However, that is not the only option available to the court. Since New York is not a community property state, and equitable does not mean equal, the court may distribute the marital property on the basis of their economic contribution to the marriage.

In a recent case, Booth v. Booth, 24 A.D.3d 1238 (4th Dept. 2005), the Appellate Division, Fourth Department, held that the lower court did not abuse its discretion in awarding defendant 70% and plaintiff 30% of marital assets where defendant contributed most of the family’s support and was the children’s primary caretaker. In this case, the parties’ history of earnings demonstrates that plaintiff was the primary wage earner and contributor to the parties’ finances during the marriage.

In Niland v. Niland, 291 A.D.2d 876 (4th Dept. 2002), the Appellate Division, Fourth Department, considered the issues of equitable distribution in context of dissimilar earnings of the parties. The Appellate Division upheld the lower court’s findings that plaintiff-wife was entitled to 60% of the marital assets, where, based on its determination of credibility, the lower court found that plaintiff made “significantly greater financial contributions” to the marriage as well as “significant contributions to the development of [defendant’s] business.”

Downward Modification of Maintenance

In these uncertain economic times, someone obligated to pay maintenance may lose a job, experience significant investment losses, or suffer other adverse financial events. Can something be done about maintenance under those circumstances? The answer, as I have often written, depends on the specific facts.

A party seeking the reduction of a maintenance obligation bears the burden of establishing a substantial change of circumstances. Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994). In Klapper, the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.” Id. at 519. The Appellate Division, Fourth Department utilized the same standard of review in Able v. Able, 245 A.D.2d 1026 (4th Dept. 1997).

In Simmons v. Simmons, 26 A.D.3d 883 (4th Dept. 2006), defendant lost his job and subsequently moved for a downward modification of his maintenance obligation. The Appellate Division held that since despite defendant’ diligent job search, he had little prospect of finding employment at a salary comparable to his salary at the time of the divorce, the downward modification was warranted.

The party seeking to modify the maintenance provisions of a judgment of divorce in which the terms of a stipulation of settlement have been incorporated but not merged, must demonstrate that the continued enforcement of the party’s maintenance obligations would create an “extreme hardship”. Beard v. Beard, 300 A.D.2d 268 (2d Dept. 2002) (the proper amount of support payable is determined not by a parent’s current economic situation, but by a parent’s assets and earning powers). See also, Domestic Relations Law § 236(B)(9)(b).

A reduction in the payor’s income will not result in decreased maintenance where it is the result of a voluntary action, such as self-imposed retirement. Fendsack v. Fendsack, 290 A.D.2d 682 (3d Dept. 2002); DiNovo v. Robinson, 250 A.D.2D 898 (3d Dept. 1998). In Dallin v. Dallin, 250 A.D.2d 847 (2d Dept. 1998), the Second Department held that Family Court properly rejected the father’s claims that his financial situation, prolonged unemployment, and illnesses warranted a drastic reduction of his maintenance and child support obligations. The father had failed to produce any competent evidence to support his claim that he used his best efforts to obtain employment commensurate with his qualifications and experience or that his medical conditions rendered him unemployable.

In Lenigan v. Lenigan, 146 Misc.2d 627 (Sup.Ct., Albany County 1990), the defendant sought to reduce his maintenance and child support obligations. The defendant claimed that, in the prior three months, his compensation as a stock broker had been reduced. It is well settled that the party seeking to obtain a reduction of support bears the burden of establishing a substantial change of circumstances. Id. A drastic change in income can constitute a substantial change of circumstances. Id. In Lenigan, the defendant was a stockbroker, and by the very nature of his business, his income would fluctuate throughout the year. The Supreme Court held that, adopting the defendant’s theory of allowing a modification based upon temporary fluctuations in income would lead to a ludicrous result. Although the defendant asserted a three-month lull in business, there was nothing to establish that sales would not pick up in the following months.

In conclusion, an experienced divorce lawyer faced with a significant change in client’s economic situation, must carefully construct an argument for the court that the change was not created by his/her client, that the change is significant, that it is likely to last for a some time, and that the client has exhausted all other alternatives.
In Watrous v. Watrous, 292 A.D.2d 691 (3d Dept. 2002), at age 55, the plaintiff voluntarily retired from State employment and, shortly thereafter, moved to terminate or, in the alternative, reduce his maintenance obligation. The plaintiff asserted as a substantial change in circumstances that he took early retirement due to his poor health and would be experiencing a significant reduction in income. A hearing was held and, at the close of plaintiff’s proof, Supreme Court granted defendant’s motion to dismiss, finding that plaintiff had failed to establish a sufficient change in circumstances. The Third Department affirmed on appeal, stating that a maintenance obligation established by a judgment of divorce will not be modified absent clear and convincing proof of a substantial change in circumstances. The record revealed that, at the time of the divorce, Supreme Court was aware of both the medical restrictions on plaintiff’s employment and the possibility that his poor health might cause him to retire early. Accordingly the circumstances existing at the time of the plaintiff’s application for downward modification were foreseeable, and anticipated at the time of the parties’ divorce. Furthermore, the record was devoid of evidence that the reduction in the plaintiff’s income would substantially diminish his standard of living or his ability to satisfy his maintenance obligation. The Third Department therefore concluded that the plaintiff failed to establish a substantial change in circumstances.

Divorce and Exclusive Possession of Marital Residence During Pendency of the Action

I am often asked by a party to a divorce action if the other party can be forced to leave the marital residence. My usual response is that it can be done under the appropriate circumstances. Exclusive use and occupancy of the marital residence may be awarded during pendency of a divorce action upon a showing that a spouse’s presence has caused domestic strife and/or that the spouse has voluntarily established an alternative residence. See, Domestic Relations Law §234; Annexstein v. Annexstein, 202 A.D.2d 1062 (4th Dept. 1994). The standard for granting exclusive possession is a flexible one and may include any circumstance warranting judicial intervention. See, Grogg v. Grogg, 152 A.D.2d 802 (3rd Dept. 1989) (The presence of marital strife can be a recognized standard for an award of exclusive possession). In I.Q. v. A.Q., 228 A.D.2d 301 (1st Dept. 1996), where there was no dispute of a significant potential for strife should defendant return, and no genuine issue raised that defendant’s exclusion from the marital residence would cause him more than minimal disruption, the motion court’s award of temporary exclusive possession, without a hearing, was a proper exercise of discretion. Id.

Similarly, in Iuliano v. Iuliano, 30 A.D.3d 737 (3rd Dept. 2006), testimony clearly demonstrated the existence of marital strife between the parties requiring an award of exclusive possession to insure the personal safety of the parties. Given the disparate financial circumstances of the parties, the award of exclusive possession to defendant was deemed to be proper. Id. In Mitzner v. Mitzner, 228 A.D.2d 483 (2nd Dept. 1996), the Supreme Court was found to have properly awarded the defendant temporary exclusive possession of the marital residence, given the domestic strife caused by the plaintiff’s presence in the home and the fact that he had voluntarily established an alternative residence. Id. See, also, Block v. Block, 245 A.D.2d 153 (1st Dept. 1997) (In light of husband’s admission that due to marital strife, he voluntarily vacated the marital residence shortly after signing a one-year sub-lease for an apartment, and the unrebutted expert evidence concerning the impact of the domestic strife on the wife prior to the husband’s departure and the potential harm to the wife and children if the husband returned, the motion court erred in not granting the wife’s cross-motion for exclusive occupancy of the marital residence and in granting the husband’s motion for complete access thereto).

If the presence of one party has caused significant domestic strife in the marital residence and that party has sufficient means to secure an alternate residence, the other party may be granted exclusive use and occupancy of the marital residence. During a divorce, exclusive possession is one of the most important tools available to a divorce lawyer to improve client’s position, and to force the other party to establish a separate household. Grant of exclusive possession is likely to have significant consequences with respect to custody, visitation, temporary maintenance and other issues. Since the grant of exclusive possession under Domestic Relations Law §234 is within the court’s discretion, it is difficult to have it overturned on appeal.

Paying for College – A Requirement Under the Child Support Standards Act?

Prior to the enactment of the Child Support Standards Act, contained in Family Court Act §413 and Domestic Relations Law §240, the courts had held that the provision of a college education to one’s minor children was not a necessary expense for which a parent could be obligated in the absence of a voluntary agreement or special circumstances. Haessly v. Haessly, 203 A.D.2d 700 (3d Dept. 1994). However, recent case law recognized that special circumstances, which involve the educational background of the parents, the child’s academic ability, and the parents’ financial ability to provide the necessary funds, continue to be relevant factors in applying the standard set forth by the Legislature in the Child Support Standards Act for determining whether an award for college expenses is appropriate.

It is clear that the Court has the power to order a parent to pay his child’s educational costs even though the parties’ settlement agreement is silent on that issue. Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005); McDonald v. McDonald, 262 A.D.2d 1028 (4th Dept. 1999). As aptly noted in Mrowka v. Mrowka, 260 A.D.2d 613, 613 (2d Dept. 1999), “Although the parties’ stipulation of settlement was silent as to the costs of college, this does not necessarily mean that an agreement was reached pursuant to which college costs would not constitute a component of the parties’ obligation to pay child support.”

According to the Appellate Division, Fourth Department, Fruchter v. Fruchter, 288 A.D.2d 942, 943 (4th Dept. 2001), the Child Support Standards Act authorizes an award of educational expenses where warranted by the best interests of the children and as justice requires, upon a showing of “special circumstances”. Relevant factors include the educational background of the parents, the child’s scholastic ability, and the parents’ ability to provide the necessary funds. Id.

In Manocchio v. Manocchio, 16 A.D.3d 1126 (4th Dept. 2005), the Appellate Division, the Fourth Department, rejected the father’s contention that Family Court improperly denied his objection to an order requiring him to pay half of his daughter’s educational expenses. The Fourth Department held that the support magistrate properly determined that the petitioner-mother was unable to meet the child’s educational needs on the income and support that she was receiving, and that the respondent-father had the ability to pay support. Id.

Therefore, even if the parties have a separation agreement that is silent on the issue of paying for college, they may be directed to pay for their child’s college education by the court.

Visitation and Older Children

I have previously written that with respect to the issues of custody and visitation, children, especially older children, may have some input into the court’s decision. Sometimes, that input may cause the court to terminate visitation altogether. In a recent decision, the Appellate Division, Second Department, reversed orders awarding visitation to the mother where the family court’s in camera interviews with the then-16-year-old children confirmed that they were vehemently opposed to any form of visitation with the mother. Sassower-Berlin v. Berlin, 2009 NY Slip Op 00217 (2nd Dept. 2009). The court restated the familiar principal that “[a]s a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access”. Because the record contained substantial evidence that visitation as awarded by the Family Court would be detrimental to the welfare of the subject children, the Appellate Division held that any attempts to further a relationship with the mother at this point would cause the children undue emotional distress.

While Sassower-Berlin is clearly an exception rather than the rule, it reinforces the fact that older children may have significant input into custodial and visitation arrangements.

Recent Amendment to Domestic Relations Law §240

On January 15, 2009, another amendment to Domestic Relations Law §240 became effective. The amendment prohibits courts from signing custody orders before they check the following registries: the domestic violence registry, the Family Court “Universal Case Management System” (for child protective decisions and orders), and sex offender registry. The court is required to notify the attorneys, self-represented parties and attorneys for children of the results of the search. This notification can be made in writing or orally, on the record, especially with with respect to the sex offender registry, since the search of that registry will not generate a report that can be shared with the parties.

As a result of the amendment, the judgments of divorce, permanent custody orders and any temporary orders involving petitions for custody or visitation, must include the language stating that required databases were reviewed and what information , if any, from the databases was relied upon by the court in issuing the order.

The above is likely to place an additional burden on the courts, litigants and attorneys.

Same Sex Marriage and Inheritance Rights

I have previously blogged about recognition of same sex marriages by New York courts, and specifically, Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept. 2008). The courts have applied Martinez in recognizing the right to benefits, divorce, adoption, and now, inheritance rights. In a recent decision, In re Ranftle, N.Y.L.J., (Feb. 3, 2009), the Surrogate Court in New York County recognized a same-sex marriage entered into in Canada for the purpose of determining decent’s distributees.

The decent H. Kenneth Ranftle, married his same sex partner, J. Craig Leiby, in Monreal, Canada, on June 7, 2008. He died on November 1, 2008, and was survived by Mr. Leiby and three siblings. Relying on Martinez, the Surrogate Court recognized the marriage as valid and entitled to recognition in the Sate of New York. Therefore, Mr. Leiby was declared to be decedent’s surviving spouse and sole distributee under Estates Powers & Trusts Law §4-1.1. Under Estates Powers & Trusts Law §4-1.1, Mr. Ranftle’s siblings will not be entitled to any part of his estate.

Non-Marital Property Is Not Subject to Distribution

I have previously written about relevant classification of property for equitable distribution purposes. Normally, the property is classified as either separate or marital, regardless of how the title is held. However, once in a while I have seen situations where property rights are claimed in a property which is titled in neither the husband’s or wife’s name.

In Mattioli v Mattioli,48 A.D.3d 1143 (4th Dept. 2008) the Appellate Division held that Supreme Court properly refused to treat the former marital residence, which was titled in the names of plaintiff’s parents or in one of their names, as marital property subject to equitable distribution, despite the fact that plaintiff paid her father $42,899 during the marriage as a down payment towards its purchase. The Appellate Division held that the trial court erred, however, in basing its decision solely on the fact that title to the property was held by one or both of plaintiff’s parents, rather than by plaintiff and/or defendant. That fact was not necessarily dispositive because Domestic Relations Law 236(B)(1)(c) defines marital property as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” Thus, the dispositive issue was whether plaintiff and/or defendant held “any valuable property rights” in the former marital residence, inasmuch as property is “not marital property [where] neither the wife nor the husband [holds] any valuable property rights” in it. While the parties in this case alluded to an agreement between plaintiff, defendant, and plaintiff’s parents for the purchase of the former marital residence, no written agreement for the purchase and sale thereof was presented to the court. In the absence of a written contract, there was no evidence before the court that either plaintiff or defendant held the requisite “valuable property rights” in the former marital residence to render it marital property.

The Appellate Division held that the trial court erred in applying the doctrine of judicial estoppel in precluding defendant from presenting evidence of funds received by plaintiff from the sale of the former marital residence. Defendant attempted to establish that the $8,000 to $9,000 received by plaintiff from the sale of the former marital residence was marital property in the form of appreciation in the value of the property resulting from improvements he made to it during the marriage. The Supreme Court erred in relying on its decision when it applied the doctrine of judicial estoppel to the former marital residence. The record established that during the marriage defendant twice filed for bankruptcy under chapter 7 of the Bankruptcy Code and received discharges, and that he claimed in both bankruptcies that he was single and did not list the former marital residence as an asset in his bankruptcy schedules. The court thus determined that judicial estoppel prevented defendant from claiming any interest in funds received upon the sale of the former marital residence. Because marital property rights are determined upon the granting of a divorce, and defendant was not required to list possible future rights to marital property in the bankruptcy schedules. The Appellate Division modified the judgment by remitting the matter to Supreme Court to reopen the proof at trial to permit defendant to submit evidence that the funds received by plaintiff from the sale of the former marital residence were marital property.

The lesson of Mattioli is a simple one. If you are entering into any kind of agreement that may involve property to which you may have to establish a right to, make sure that the agreement is in writing.

Abandonment and Basic Obligations Arising Out of Marital Contract

Because New York requires that when a divorce action is commenced, one of the parties must allege one of the grounds contained in Domestic Relations Law §170, many times an experienced New York Divorce lawyer will use the grounds issue as a bargaining chip. One of the grounds available to the parties is abandonment Domestic Relations Law §170(2), and specifically constructive abandonment which occurs when a spouse fails to fulfill a basic obligation arising from the marital contract. “Constructive abandonment” also refers to a cessation of sexual relations as constituting an abandonment, even though the parties may continue to live together. Diemer v. Diemer, 8 N.Y.2d 206 (1960).

In a recent decision by the Appellate Division in the Third Department, the definition of constructive abandonment has been expanded.

In Dunne v. Dunne, 47 A.D.3d 1056 (3rd Dept. 2008) the parties were married in 1976. Around 1996 or 1997, plaintiff was diagnosed with a general anxiety disorder. He was prescribed medications, including anti-anxiety and sleep medications, to alleviate his anxiety and inability to sleep. Defendant, after reading various articles on the potentially dangerous effects of such medications and noticing a hostile change in plaintiff’s demeanor, insisted that plaintiff stop taking the medications. Plaintiff’s doctor began decreasing the medications, but, as a result, plaintiff began drinking alcohol in order to cope with his increased anxiety. This led to an incident in February 2002 when plaintiff was found unconscious after excessive drinking and was taken to the hospital. In May 2002, defendant moved plaintiff’s belongings from the marital residence to an apartment which they owned. Plaintiff returned to the marital residence shortly thereafter; however, defendant demanded that he leave after she noticed the smell of alcohol. Thereafter, plaintiff sought treatment for alcohol abuse and stopped drinking. In early 2003, his doctor prescribed two prescription medications, one of which was the Benzodiazepine medicine Klonopin, to control his anxiety disorder. Although the parties engaged in marriage counseling, according to plaintiff, defendant insisted that a condition to their reconciliation was that he cease taking any and all prescription Benzodiazepine medications. In April 2004, plaintiff commenced this action for divorce on the ground of constructive abandonment. Supreme Court, crediting plaintiff’s testimony, granted the divorce. The Appellate Division affirmed. Defendant contended that plaintiff failed to establish constructive abandonment inasmuch as his exclusion from the marital residence was not complete, was on consent and was justified under the circumstances. In an action for divorce based upon constructive abandonment, the party seeking the divorce must establish that the other spouse has refused to fulfill the basic obligations of the marriage relationship for a period of one year or more, without justification or consent by the abandoned spouse. In addition, the evidence must show a ‘hardening of resolve’ by one spouse not to live with the other. Here, defendant moved plaintiff’s belongings to an apartment and demanded that he leave the marital residence. Plaintiff’s testimony established that defendant denied his repeated requests to return to the marital residence. Defendant contended that she was justified in excluding plaintiff from the marital residence until he stopped taking the Benzodiazepine medication. However, it was undisputed that plaintiff suffered from a psychological anxiety disorder. Plaintiff testified that, although he had attempted to control his condition without the use of prescription medication, his doctors advised him that anxiety disorder can only be alleviated through prescription medication. Plaintiff also testified that he had no behavioral problems with his current medications and that his anxiety is under control. Defendant’s uncompromising position that plaintiff choose to either adhere to the advice of his treating physicians or cease taking his anxiety medication in order to return to the marital residence, thereby risking his well-being, amounted to “an unreasonable condition as a term of their relationship,” which violated her marital obligation to plaintiff. It is clear from the opinion that the Appellate Division did not find defendant’s position to be reasonable.

The New York decisions on “constructive abandonment” all involve intrusions into marital privacy and disclosure of information most parties would rather keep private. The decision discussed above reinforces my opinion that New York needs to abandon its fault grounds for divorce. No-fault divorce, based upon the breakdown of a marriage, would dispense with the need for intrusions into the marital relationship. Forcing parties to accept fault or be found at fault is time consuming and costly, and generates unnecessary bitterness during the divorce process.

Basics of Prenuptial Agreements

One of the basic agreements in divorce and family law is the prenuptial agreement, which is signed prior to the parties’ marriage. It is typically used to protect one or both parties’ separate property from becoming marital property or to address any other issues between the parties in the event of dissolution of the marriage. Prenuptial agreements are encouraged as consistent with the public policy of New York. Such agreements, however, must be fair and reasonable and not invalidated by fraud, misrepresentation, coercion of one of the parties. In the absence of fraud, misrepresentation, coercion, these agreements are presumed to be valid, and the party seeking to set aside the agreement has the burden of proof.

Domestic Relations Law (DRL) §236(B)(3) governs prenuptial agreements and addresses their subject matter. Such agreements typically address the following:

1) The right to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;
(2) Ownership, division or distribution of separate and marital property;
(3) The amount and duration of maintenance or other terms and conditions of the marriage relationship; and
(4) Custody, care, education and maintenance of any child of the parties.

The courts carefully scrutinize such agreements if one of the parties is seeking to enforce it. For example, an agreement concerning the amount and duration of spousal maintenance must be fair and reasonable at the time it is made, and not unconscionable at the time of entry of final judgment in the divorce action. See Domestic Relations Law §236(B)(3); Deckoff v. Deckoff, 284 A.D.2d 426 (2d Dept. 2001). Further, no spouse may relieve the other of the requirement of support to the extent that the spouse may become a public charge. Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001). An agreement as to child support must set forth the amount of child support that would be owed under the relevant guidelines and, if the amount agreed to deviates from the same, an explanation why. Domestic Relations Law §240(1-b)(h). Moreover, even if the agreement complies with the statutory requirements, the courts “retain discretion with respect to child support”. Domestic Relations Law § 240(1-b)(h); Gravlin v. Ruppert, 98 N.Y.2d 1, 5 (2002). Similarly, a prenuptial agreement as to child custody is not binding on the court. Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982); Fanelli v. Fanelli, 215 A.D.2d 718 (2d Dept. 1995). Nor is an agreement concerning the physical location of a child subject to a joint or shared custody arrangement. Tropea v. Tropea, 87 N.Y.2d 727 (1996). In short, the statutory scheme may trump an agreement if there is an inconsistency.

Even with the courts’ ability to review and vacate prenuptial agreements, they are the single best tool family law lawyers have to plan ahead and to allow their clients to prearrange for orderly dissolution of the marriage. A prenuptial agreement may be required if one spouse is involved in a business, and his or her partners may want to protect the business from any effects of equitable distribution. If one of the parties is entering the marriage with valuable property, including real estate, a business or a license or a degree, that property, and any appreciation in its value can be protected. If one of the prospective spouses is attending law school or medical school, a prenuptial agreement will protect against such degree becoming marital property. A prenuptial agreement will allow both sides in the marriage to address issues that may arise if the marriage is dissolved. . It sets forth each party’s rights in the event of a divorce or separation.

Usually, the significant issue related to the validity of prenuptial agreements is nondisclosure. During marriage spouses are subject to the special duties imposed by their confidential relationship. As noted in Christian v. Christian, 42 N.Y.2d 63 (1977) those fiduciary duties are imposed independently of any statute. In addition, the Domestic Relations Law requires full disclosure between spouses, and to “opt out” of the statutory system there must be a full and complete disclosure of all financial data, unless there is an intelligent waiver. Courts ordinarily are wary of waivers of full disclosure.

Family law attorneys often insert clauses in settlement agreements that contain declarations that each party has made full financial disclosure to the other; that their respective counsel has fully explained to each of them the legal and practical effect of the terms of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair, and not the result of fraud, duress or undue influence. However, unless such disclosure was actually made, there is a significant risk that the agreement would be vacated by the court.

If “unconscionability” is established, such clauses certainly have limited, if any, effect. But if the settlement agreement is fair on its face, and especially if the complaining party was represented by independent counsel, such clauses are effective and, at a minimum, place a heavy burden on the party who asserts invalidity. It should be noted that courts have sustained the validity of a prenuptial agreement where there was an intelligent waiver and full disclosure was not made. In Hoffman v. Hoffman, 100 A.D.2d 704 (3rd Dept. 1984), the court held that a failure to disclose the full extent of a party’s assets does not in itself constitute such fraud or overreaching that would invalidate a prenuptial agreement, where no representations were made and thus none were relied upon.

There are also important procedural requirements applicable to such agreements. A prenuptial agreement is valid only if it 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 §236(B)(3); Matisoff v. Dobi, 90 N.Y.2d 127, 132 (1997). If the acknowledgment is does not comply with the statute, specifically Real Property Law §309-a, the agreement will be invalidated by the court.