Even in situations where the agreement may have not been executed properly or otherwise invalid, if the party does not promptly act to challenge the agreement and accepts its benefits, the court may refuse to vacate the agreement. This is the situation that the Appellate Division, Second Department, addressed in Kessler v. Kessler, 89 A.D.3d 687 (2nd Dept. 2011).
In Kessler, the parties’ separation agreement was incorporated but not merged into the judgment of divorce. The parties entered into the separation agreement on June 10, 1980, after 25 years of marriage. The parties’ separation agreement, provided that the plaintiff husband would, among other things, make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff’s motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable.
The defendant alleged, among other things, that the plaintiff had concealed from her his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York’s equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff’s motion for summary judgment, and subsequently entered a judgment of divorce, which, inter alia, directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The defendant appealed.
The Appellate Division held that party who “accepts the benefits provided under a separation agreement for any considerable period of time” is deemed to have ratified the agreement and, thus, “relinquishes the right to challenge that agreement”. By contrast, when a party “received virtually no benefits from the agreement,” he or she “cannot be said to have ratified it”.
The Appellate Division further stated that assuming the truth of the allegations set forth in the defendant’s affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received “virtually no benefits” from the agreement. Moreover, while “a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching”, the disadvantage to the defendant created by the alleged fraud and duress in this case cannot be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it.
The court held that the plaintiff made a prima facie showing that the defendant ratified the separation agreement and that the trial court properly granted the plaintiff’s motion for summary judgment.
There is a simple rule that applies to settlement and separation agreements. The party receiving substantial benefits under the agreement can’t challenge the agreement after a substantial period of time passes.