Separation agreements or stipulations of settlement that come from divorce mediations or a collaborative divorce case are structured the same as a stipulation of settlement that emanates from a divorce litigation that was eventually settled. The differences between the three methods are in the process by which the agreements are made. For more information about the divorce mediation, collaborative divorce, and divorce litigation processes please see some of my other blog entries on this site. This article will focus upon the contents of a typical agreement or stipulation of settlement. The structure of agreements vary from case to case and by the person who drafts the agreement. In other words, the appearance and contents of an agreement can vary. This blog entry is just an overview. Actual agreements should be drafted and reviewed by trained New York matrimonial lawyers.
I handle cases all around the New York City area. As a Long Island Divorce Mediation Lawyer I have customary items that I like to include when I am the drafting attorney. The beginning of the settlement agreement typically will list out certain facts about the specific marriage. The date and place of the marriage, whether it was a civil or religious ceremony and if there are children of the marriage are set forth. Next, the elements of the law that were considered in deciding the various aspects of the divorce can be enumerated.
Equitable distribution is a topic that needs to be considered for the dissolution of marriage with or without children. Therefore almost every stipulation will state that in regard to the subject of equitable distribution the parties have considered New York Domestic Relations Law Section 236(B) (5)(d) and the specifics of that section of the statute. Even if there are no marital assets to distribute, this section will usually still be included. Almost every settlement agreement will also list that in resolving the issue of the spousal maintenance, the Parties considered the following statutory factors, pursuant to New York Domestic Relations Law Section 236(B) (6). This section should be included whether or not any spousal maintenance is actually awarded to the husband or wife. Only if there are children the agreement should spell out that the parties have considered the provisions of Domestic Relations Law Section 236(B) (7) and have been advised of the provisions of Domestic Relations Law Section 240(1-b), commonly known as the Child Support Standards Act. If there are children under eighteen years of age then the elements of the Domestic Relations Law that were considered regarding custody and parenting time should be spelled out as well.
An agreement should spell out that the terms of the agreement should endure, even if there is a brief reconciliation, unless there is a properly executed writing to modify or terminate the agreement. It should be set forth that the parties are entering into the agreement with a full understanding of the financial condition of their spouse or partner. Usually, the mediator that the parties worked with and the attorneys that represented or advised the parties are stated. The fact that the stipulation is the entire settlement agreement is commonly included. That the parties will no longer inherit from the other, unless there is a subsequently made will, should be set forth. Penalties upon default should be included to advise about remedies if either party does not live up to the agreement. Parties should be able to expect that neither of them can discharge their obligations under the settlement in a bankruptcy therefore this premise is often included as well. An obligation to keep the other side updated on current addresses and for both sides to cooperate in the event future documents are needed to effectuate the terms of the settlement is usually written into document.
A section regarding the specifics of the maintenance or spousal support should be included which states the amount, if any, the duration, and how it is to be paid. The actual specifics of the custody and parenting time arrangements should be enumerated in its own section. Some parties spell out all the details including day to day time with the children, holidays, and vacations, while others leave it open to work together to agree on time as the family moves forward. Every agreement must set forth that the husband and wife may not be entitled to remain on the other’s health insurance plan after the entry of the divorce. Health insurance for the child and the parties’ responsibilities for payment of the premiums and uncovered medical expenses should be a part of the document.
Child support is one of the most closely scrutinized sections of an agreement. Even if the case is not litigated, the court will make sure that the proper child support language is included in the document if child support is to be included. Specifically the guideline amount of child support and whether there is a deviation from the guidelines should be detailed. If there is a deviation, a proper reason under the Child Support Standards Act needs to be cited.
Equitable distribution of marital assets and debt should be detailed including, but not limited to, what is to happen with real property, bank accounts, and retirement assets. Any responsibility to maintain life insurance is usually going to be in the settlement. The responsibility for court costs and attorney fees need to be written into the document as well.
As previously mentioned, each agreement varies and may contain more or less than what was detailed herein. A properly trained New York matrimonial attorney should be involved in the drafting of the document. Mediating couples are advised to consult with their own review attorneys to make sure they have an understanding of their rights before executing any settlement agreement. Feel free to call my office to discuss your options. It would be my pleasure to speak with you about it.