Long Island Family Law and Mediation Blog
When I send a matrimonial difficulties letter, I am often trying to find out whether we can negotiate a separation agreement before filing for divorce. The letter itself is deliberately short, usually. I explain that I represent the recipient’s spouse, say that my client would like to resolve matters amicably, and ask the spouse or an attorney they choose to contact me. “Matrimonial difficulties letter” is the term I use for this initial communication. It is not a document required by New York law, and sending it does not itself start a divorce case. If the other spouse is willing to discuss settlement, that short letter can lead to much more detailed work. We need to move from general intentions about separating to specific terms concerning property, support and, where applicable, the children.
Moving From an Initial Conversation to Negotiation
At the outset, I may not know whether the other spouse has retained counsel or where the spouses agree and disagree. I do not want to send six pages of demands before I have enough information to make a useful proposal. A client might tell me, “We already agreed I’m keeping the house.” Then I discover that nobody has discussed the mortgage, the equity, refinancing, or how long the other spouse is expected to remain on the loan. That understanding gives us a place to start, but there is still work to do before we have complete terms.
Once someone responds, we can begin addressing those details. I may negotiate with another attorney or communicate directly with an unrepresented spouse within the ethical limits that apply. We might work through correspondence, telephone calls, meetings or Zoom. Throughout those discussions, I represent my client. I am not the couple’s neutral mediator or the other spouse’s attorney. The other spouse can obtain independent legal advice about the proposed terms.
We also need reliable financial information. Tax returns, income records, account statements, mortgage information and debt balances might be needed to help us understand what we are negotiating. Depending on the assets involved, we may need additional records or professional valuations. A proposed settlement is much easier to evaluate when we have documents supporting the numbers although is not always required.
What Does a Separation Agreement Need to Address?
The subjects depend on the couple’s circumstances. For some spouses, the main questions involve property and maintenance (the New York word for alimony). For others, parenting arrangements and child support require substantial attention. The goal is to prepare an agreement that addresses the issues relevant to that family with enough detail to be workable.
Custody and Parenting Time
Parents often begin with phrases such as “we’re doing 50/50” or “we’ll share custody.” Those statements can reflect meaningful agreement, but I still need to understand what they mean in practice.
Where will the children sleep on school nights? How will holidays and school breaks be divided? Who will make decisions about education and healthcare? How will the parents handle transportation and travel with the children? The schedule and the allocation of decision-making responsibilities both deserve attention. Terms that seem sufficiently clear when everyone is getting along may be less helpful when schedules change or a disagreement arises. I want the agreement to give the parents useful guidance in those situations too.
Child Support and the Children’s Expenses
Child support negotiations begin with New York’s Child Support Standards Act and the financial information needed to apply it. We need to consider the basic support obligation and expenses such as health insurance, unreimbursed medical costs and childcare. Depending on the family, we may also need to address extracurricular activities, summer camp and college expenses. Parents can negotiate support terms, but the agreement must satisfy the applicable statutory requirements. If they agree to depart from the presumptive basic child support amount, the agreement must state what that amount would have been and explain the reasons for the departure, along with the other required disclosures.
The practical details matter as well. If an expense requires advance agreement, how will approval be obtained? When must a parent provide receipts, and when is reimbursement due? “We’ll split the kids’ expenses” leaves too much unanswered if the parents have different ideas about what is included. Parents should also understand that their agreement does not eliminate the court’s authority over custody and child support. Provisions concerning the children remain subject to applicable law and court review, and may be modified when the legal requirements are met.
Property and Debts
“We’ll divide everything fairly” tells me very little about the proposed terms. I need to know what property exists, what is marital, what either spouse claims is separate, and what the assets are worth. The agreement should address how property will be divided and what each spouse must do to carry out that division. If a home will be sold, we need terms governing the sale. If one spouse will keep it, we need to address any equity payment, financing and the expenses each spouse will pay while the transfer is being completed.
Retirement assets deserve particular care. Saying “we’ll each keep our retirement” may sound simple until one spouse has a pension worth several times the other spouse’s account. If retirement benefits will be divided, we also need to consider the documents or court orders required to implement the division.
Debts need similar attention. Which balances are being allocated, who will pay them, and what steps are needed concerning joint accounts? Agreeing between yourselves who will pay a debt does not, by itself, release either borrower from obligations to the creditor.
Maintenance
Maintenance, sometimes called alimony, is another subject we may need to resolve. New York’s maintenance guidelines and statutory factors provide a framework for evaluating the issue. The agreement should make clear whether maintenance will be paid or waived. If it will be paid, we need terms addressing the amount, duration, payment schedule and circumstances under which it ends. Those decisions should be considered alongside the other financial provisions so that my client understands how the proposed arrangement will work.
Other Terms That Matter to the Family
Depending on the circumstances, we may also need to address insurance, tax issues, legal fees and other obligations. Some agreements require provisions about obtaining documents, cooperating with transfers or meeting particular deadlines. There is no single set of terms that will suit every couple. The agreement needs to reflect the assets, responsibilities and concerns of the people signing it.
Why Does the Exact Wording Matter?
Suppose the spouses agree that one parent will cover college. Does that mean tuition only, or also housing and other expenses? Is there a limit on the cost? Does the obligation cover a private university? What role does financial aid play? These are not questions I want to leave until a tuition bill arrives. The same is true of shared expenses, payment deadlines and the steps needed to divide an asset. I would much rather have a conversation about what “shared expenses” means now than a very expensive conversation about it after the agreement has been signed.
There are legal formalities as well. Under New York law, a separation agreement must be in writing, signed by the parties and acknowledged with the formalities required by law. Proper execution matters, but it is not the only consideration. The substance of the agreement must also comply with the legal requirements applicable to its provisions. An informal understanding can be useful during negotiations. It should not be confused with a complete, properly prepared and executed separation agreement.
What Happens After We Sign the Separation Agreement?
Signing a separation agreement does not end the marriage. Some spouses choose to remain separated. Others want to proceed with a divorce once they have settled the terms. If we have negotiated a complete agreement and the requirements for divorce are met, the agreement can be used as part of an uncontested divorce. The divorce papers still need to be prepared and submitted, and the court must grant a judgment before the spouses are divorced.
There is a timing distinction worth understanding. Signing a separation agreement does not itself require spouses to wait another six months before pursuing a no-fault divorce under Domestic Relations Law §170(7). That ground requires an irretrievable breakdown of the marital relationship for at least six months, as stated under oath by one spouse. It does not impose a new six-month waiting period measured from the signing of the agreement.
Before the divorce judgment can be granted, all issues required by the statute must be resolved by agreement or determined by the court and incorporated into the judgment. These include property distribution, maintenance, child support, custody and parenting time where applicable, and counsel and expert fees and expenses. This is one reason I like exploring settlement before filing when the circumstances support that approach. If we reach a complete agreement, we can proceed toward an uncontested divorce with the substantive terms already worked out. That does not mean waiting to file is appropriate in every case; the timing still needs to be considered in light of my client’s circumstances.
What If We Cannot Reach an Agreement?
Negotiations do not always produce a complete separation agreement. We may agree on property but remain apart on maintenance, or resolve the finances while parenting issues remain disputed. Even then, the discussions may help identify the issues that require further work. But I also need to recognize when negotiations are no longer productive. Repeated failures to provide financial information or discussions that make no meaningful progress may call for a different approach. When I represent one spouse in negotiations, I can ordinarily continue representing that client if a divorce action becomes necessary. Attempting settlement first does not, by itself, prevent me from advocating for my client in court. Settlement discussions can also continue after filing.
A matrimonial difficulties letter begins the conversation. Whether that conversation leads to a separation agreement depends on the spouses’ willingness to exchange information, address the details and reach workable terms. When that is possible, a carefully prepared agreement can give both spouses a clearer understanding of their responsibilities and provide a foundation for moving forward.