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For Whom the Pre-Nup Tolls
As the matrimonial bar knows, there has long been a dichotomy between the first and second appellate departments on the issue of prenuptial agreements and the tolling of the statute of limitations. This difference was supposed to be eliminated by the enactment of Domestic Relations Law (DRL) 250, which became effective as of July 3, 2007. A review of the statute on its face seems to make the issue crystal clear ' the statute of limitations on prenuptial and postnuptial agreements is tolled during an intact marriage. A review of the session law, however, muddies those waters.
Some Background
By way of background, prior to the enactment of DRL 250, the governing statute of limitations, which governed marital agreements, as all contracts, was Civil Practice Law & Rules (CPLR) 213. It provides for a six-year limitation period. Notwithstanding, the First Department had held that the statute tolled in deference to public policy considerations, including the intermediate appellate decision in Bloomfield v. Bloomfield, 281 AD2d 301 (1st Dept. 2001), and in other prior decisions such as Lieberman v. Lieberman, 154 Misc.2d 749 (Sup. Ct., NY Cty. 1992), and Zuch v. Zuch, 117 AD2d 397 (1st Dept. 1983).The First Department in the Bloomfield case, which was later reversed by the Court of Appeals, reiterated its position that it would not apply the governing statute of limitations holding:
The Statute of Limitations does not apply in the case of an agreement void on its face (Clermont v. Clermont, 198 AD2d 631, lv dismissed 83 NY2d 953), as is here the case. Even were it to be concluded that the agreement was voidable, at the very least we would find that the Statute of Limitations for a challenge to a prenuptial agreement is tolled during the marriage. In Lieberman v. Lieberman (154 Misc 2d 749), it was cogently held that, in view of the public policy of this State with respect to the marital relationship, the statute must be tolled until the parties physically separate, until an action for divorce or separation is commenced, or until the death of one of the parties. The result otherwise is the 'anomalous' requirement that, irrespective of the viability of the marriage relationship, the husband and wife must assume adversarial positions as to their prenuptial agreement within the first six years of their marriage or forever lose their right to challenge the agreement (id. at 753-754). Such a requirement 'flies in the face of logic and would be against public policy' since it 'would critically undermine … the vitality of marriages generally (Zuch v. Zuch, 117 AD2d 397, 405).
The Second Department, to the contrary, had maintained that the six-year statute of limitations governed and such claims are time barred by CPLR 213. See DeMille v. DeMille, 5 AD3d 428 (2d Dept. 2004), Rosenbaum v. Rosenbaum, 271 AD2d 427 (2d Dept. 2000), Anonymous v. Anonymous, 233 AD2d 350 (2d Dept. 1996). The DeMille court reiterated the second Department's position that ' no court has the authority to create such an exception to the statute of limitations (see Scheuer v. Scheuer, 308 NY 447, 126 NE2d 555; Dunning v. Dunning, 300 NY 341, 90 N.E.2d 884; Arnold v. Mayal Realty Co. Inc., 299 NY 57, 85 NE2d 616; Mack v. Mendels, 249 NY 356, 359, 164 NE 248).'
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