Procedure is an intricate element of jurisprudence; cases, at all levels, are lost for noncompliance. Under the New York State Constitution, the authority to regulate practice and procedure in the courts is delegated primarily to the Legislature. N.Y. Const. art. VI, §30; A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (1986). Nevertheless, valid procedure in one department may be invalid in another, e.g., E. Scheinberg, “CPLR 5513(a): Whose Service of the Order or Judgment Starts the 30-Day Limitation Period?,” NYLJ (Feb. 5, 2019).

This column reviews McGovern v. McGovern, 186 A.D.3d 988 (4th Dep’t 2020), another decision in a rapidly approaching four-decade old departmental schism as to whether the time-honored legislative method for settling cases by way of on-the-record-open-court agreements, per CPLR 2104, a statute anchored in the judicial policy of calendar management (Hallock v. State, 64 N.Y.2d 224, 230 (1984)), supersedes the three procedural requirements in Domestic Relations Law §236B(3) to create enforceable marital (prenuptial and postnuptial) agreements. See E. Scheinberg, Contract Doctrine and Marital Agreements in New York (NYSBA, 2 vols., 4th ed. 2020).

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