It’s always a great thing when two people getting divorced can reach an agreement regarding the issues in their case. This is especially true in New York City, where full litigation of all a divorce’s issues in court can take not only months, but sometimes years. A settlement agreement that is negotiated by the parties and their attorneys can save a lot of time, stress, and expense. However, it is important to remember a couple of key points in order to make sure that a settlement holds up over time without issue.
First, make sure to state the basic information regarding the marriage, including the parties’ full names, any prior names, and the date and location of the marriage, and whether it was a religious or civil ceremony. It is also crucial to list all the children of the marriage and their birthdates, even if they are over 21 years of age. The agreement should also state the names of the parties’ attorneys, and that the parties each had a chance to consult with their attorneys and review the contents of the agreement.
After the basic information is listed, one of the primary issues to tackle is Equitable Distribution, or the division of the marital assets. The parties should state that they were made aware of and considered the applicable New York law, Domestic Relations Law Section 236(B)(5)(d). Even if there are no marital assets, the fact that the parties have addressed division of any property together that did exist is important to avoid later disputes. If there is property being divided, the agreement should be as specific as possible in specifying how (who gets which item, how much that item is worth, etc.), and the reasons the parties divided the assets the way that they did.
The parties should also state any maintenance being provided (the amount, payment method, duration, and factors considered that led to maintenance being provided). If the parties are waiving maintenance, this must also be stated for each of them. The statutory factors regarding maintenance under New York Domestic Relations Law 236(B)(6) should be listed out in full.
If the parties have children, the parties should specify the custody arrangements in as much detail as possible. This includes legal custody, physical custody, and holiday and visitation schedules. Additionally, the terms dictating child support, including the amount to be paid and the method of payment, should be stated. If the parties are using the Child Support Standards Act (CSSA), the CSSA calculation based on the parties’ income should be written out. If the parties deviate from the CSSA, there should be an acknowledgement that the parties are aware of the CSSA guidelines and what the calculated amount would be, and a statement of the parties’ reason(s) for deviating. There should also be provisions regarding the children’s educational expenses, religious education (if applicable) and always which parent is providing the children with Health Insurance until they reach adulthood.
In the vein of health insurance, the parties must both sign individual acknowledgments that they may not be able to remain on their ex’s insurance plan and may have to purchase a cobra option. The same applies to inheritance rights, where each party will typically state that they no longer have a claim to their ex’s estate.
Another financial aspect the parties should include are statements addressing the tax implications of their agreement and that they cannot discharge their obligations under bankruptcy, so that neither can “get out” of the terms by claiming poverty.
Lastly, the parties to a divorce should always include a clause specifying that if any provision is rejected under New York law, the rest of the agreement should still be upheld. Additionally, they should detail penalties that are imposed in the event one party does not comply with the terms of the agreement. The parties should also state their agreement to cooperate in any way necessary (updating each other on contact information, signing off on or obtaining documents to effectuate the transfer of assets, etc).
Overall, the most important factor is to detail everything—particularly custody and financial aspects—as much as possible, and to ensure that the agreement is enforceable. Doing so will ensure that the parties will know exactly what their rights are, avoiding potential disputes in the future.