Part I examined the issues raised in McGovern v. McGovern, 186 A.D.3d 988 (4th Dep’t 2020); the dichotomy between CPLR 2104 and DRL §236B(3) regarding marital agreements; and what constitutes “open court”. Part II studies the history of the departmental rift, including exceptions, and examines the dissent in McGovern.

The history of the departmental rift; the Second Department. Beginning in or about 1982, a schism evolved between the Second Department and the Third and Fourth Departments with regard to the validity and enforceability of agreements that had been dictated into the record in open court but never reduced to a writing, subscribed to by the parties and duly acknowledged in a manner entitling a deed to be recorded pursuant to §236B(3).