In New York, the parties to a divorce have the option to enter into a mutually acceptable separation agreement if they can agree on the terms of the divorce. For the most part, courts will uphold the terms of valid New York separation agreements. However, the court retains ultimate jurisdiction over specific issues.
For example, when it comes to determining New York child custody issues, the parties are free to discuss the issue and come up with an arrangement that works for both parties. However, under New York family law, the primary factor courts consider when deciding child custody issues is what is in the best interest of the children. Thus, if a separation agreement provides for a custody arrangement that is not in the best interest of the children, the court may not enforce that provision of the agreement. Similarly, an agreement as to the physical location where the child will live is also subject to the court’s “best interest” analysis.
Once a separation agreement is accepted by the court and incorporated into a New York divorce proceeding, the terms of the agreement will remain in force unless there is a change in circumstances. A recent case illustrates how New York courts handle a party’s request to modify a previously agreed upon custody arrangement. Continue reading