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Friday, November 03, 2006

What Should Be in a Marital Agreement - Checklist for Settlement of Divorce Case

"Opting-out" or "post-nuptial" agreements are agreements made between spouses during marriage when the prospect of divorce or dissolution is not a factor, or during a reconciliation after a separation.
"Separation" agreements, ‘stipulations of settlement”, and "property settlement agreements”, usually refer to agreements made before or during a separation of the spouses, or during litigation by spouses who are married and intend to live separate or dissolve their marriage. Each of these agreements governs the respective rights and obligations of spouses in the event of a dissolution. In this guide I refer to all of them as “marital agreements.”
Separation agreements differ from the other kinds of agreements because they are contracts between a husband and wife contemplating their living separate and apart. Two competent adults who have actually separated may enter into a valid separation agreement, placing financial responsibility according to their desires and means and a similar arrangement may be made between the parties where they have not yet actually separated, but in contemplation of the separation. The only effect of a separation or marital agreement is to modify the customary rights and duties of the spouses in the manner and extent provided in the agreement. A matrimonial agreement is to be interpreted just like any other agreement. The interpretation is measured by the understanding of the parties as expressed in the agreement. The rules applicable to separation agreements in general apply in construing and enforcing all matrimonial agreements. Where the terms of a marital agreement are clear, and only one reasonable interpretation can be given, that construction will be adopted.
The public policy of the state, as in most states, encourages those persons who are married or about to be married to "opt out" of the statutory system and to create their own provisions for support and property division upon the dissolution of a marriage.
An agreement made before or during the marriage is valid and enforceable in a matrimonial action if the agreement is in writing, voluntarily signed by the parties, and acknowledged. New York requires such agreements to be acknowledged or witnessed in the same form as necessary to entitle a deed to be recorded. These agreements may include a provision to make a testamentary provision or a waiver of any right to elect against the provisions of a will; provisions for the ownership, division or distribution of separate, or marital property; provisions for the amount and duration of maintenance or child support, and other terms and conditions related to the marriage relationship; and provisions for the custody, care, education and maintenance of any child of the parties.
New York state's public policy limits what may and may not be covered in these agreements, and should be given careful scrutiny before the drafting of any documents. In New York marriage is considered a relationship of the highest trust and confidence and agreements between spouses are subject to strict standards. Their terms must be fair and reasonable at the time of the making of the agreement. There are limitations upon what they can contain. To be enforceable and to "opt out" of the statutory system, the matrimonial agreement must not violate the declaration of public policy expressed in our statutes. For example, in New York parties are not free to waive their duty to provide support for the other if that party is about to become a public charge. The public policy of New York is to ensure that minor children receive adequate financial support from their parents. The terms of a settlement agreement must provide for the welfare of the children. An inadequate child support provision is usually voidable and cannot bind an appropriate court from remedying the inadequacy, nor can it bind a parent from seeking to remedy the inadequacy. New York prohibits parents from waiving child support or providing for arbitration of custody disputes. At most, parents may allocate custody rights and child support duties, so long as their terms are not detrimental to the welfare of the children.
Caution: New York law requires that child support agreements comply with the provisions of the Child Support Standards Act. While there is restricted freedom of the parties to contract regarding custody and child support, they have relative freedom to waive inheritance rights, to fix the amount and duration of maintenance, and to distribute property as they see fit, by an agreement.
Since well over 90 percent of matrimonial actions are settled before or during trial, the negotiation process is of critical importance. The process in and of itself pits the "haves" against the "have nots". The party who has the stronger bargaining leverage has a distinct advantage. The party who most wants a divorce starts negotiations with a distinct disadvantage. The party who has the ability to obtain a divorce has an advantage. The party who has the financial wherewithal to support litigation and to support him or herself has a distinct leg up. Statutes and court decisions during this critical period are significant insofar as they affect the probable outcome of the case by setting the boundaries for the bargaining. The matrimonial lawyer's estimate of what a court is likely to do under the facts of his or her case will go a long way in shaping the negotiations.
The coercive use of financial power as bargaining leverage, ordinarily by the husband, is matched to some extent by the wife-mother's dominion, generally speaking, over the children. During and after negotiations the custodial parent has the most to say about the quality and quantity of parent-child contacts with the other parent. The parent may sabotage that relationship. Oratory aside, the campaign to make joint or shared custody the norm, on the personal level, involves a struggle over bargaining leverage. For the past one hundred and fifty years in this country, a fit mother was awarded custody in nine out of ten cases and the father was relegated to "reasonable visitation." Today, we have the doctrine of the "more fit" parent. But times have changed and roles no longer are fixed and immutable. Over half of American wife-mothers are employed in the market place. Many husband-fathers are actively involved in child-rearing.
The wage discrimination against women in the market place still remains and employment opportunities for women are more limited, especially for those who have in the past concentrated on the difficult job of running the household and rearing children, and thus have lost meaningful career opportunities outside the home. Statistics show that following divorce the economic position of the former wife rapidly deteriorates while that of most former husbands substantially improves.
So the breadwinner and holder of the purse has and retains coercive bargaining leverage. That person in large measure, controls the bargaining process since it is that person who has the resources for continuing warfare in and out of court. The enemy may soon be exhausted and give in to despair.
The advantages or unfair bargaining leverage engendered by statutes or court decisions have a far greater impact than one would suppose. For one thing, such natural or unnatural advantages politicize the divorce process and distract us from the merits of the particular case or issue, and the rhetoric is heating up rather than cooling down as competing groups vie for more bargaining leverage and clout.
The protocol for the bargaining process calls for a willingness to be flexible and to make concessions where it matters least in order to obtain concessions that matter more. Parties are encouraged to reach an agreement and to settle between themselves. In this chapter I discuss the essential clauses that should be part of these agreements.


The preamble lists the date of the agreement, the names of the parties to the agreement and their addresses. A marital agreement should have a preamble, just like any other contract, reciting the names and addresses of the parties and the phrases used throughout the agreement to refer to them individually and jointly, if necessary.


An agreement should recite the date of the parties marriage, the names and dates of birth of their children, and whether they expect to have any more children. It may also contain a statement of the representations, if any that the parties are making to one another and an expression of the intention of the parties in entering into the agreement. The recitals are at the beginning of the matrimonial agreement before the statement of the consideration and are not part of it, although a court construing the agreement may consider them.

All contracts must have some consideration, that is both parties must have obligations to the other. If there is no consideration for an agreement the agreement will usually not be valid because it will amount to nothing more than a promise to make a gift, which is not enforceable until the gift is given. The consideration for marital agreements are the mutual promises contained in the agreements. These agreements are generally authorized by the Domestic Relations Law of the particular state, as long as they comply with the statutory requirements. To the extent that an antenuptial agreement is executory, it must be supported by sufficient consideration. Generally, the marriage itself constitutes sufficient consideration for the promises of a spouse, although there may be other valuable consideration, such as mutual promises.


Sometimes the parties want to express in the body of the agreement, rather than in the recital, what their intentions are with regard to its provisions. This is where it should be done as it will become a part of the agreement.

In a separation agreement, a provision providing for the parties' separation must be in the agreement, (i.e., "The Parties will live separate and apart as if such parties were single and unmarried.") This is not, however, authorization to engage in adultery.


This clause requires each spouse to leave the other alone during the period of the parties' separation and not to interfere with the other or sue to compel a resumption of cohabitation. A provision against molestation in a separation agreement is an independent condition, and its breach does not terminate the agreement or relieve the other spouse from his or her obligations.


The agreement should specify what property each party is to retain or receive. There should be a provision filling any gaps in case something is forgotten or inadvertently left out of the agreement. This provision covers the gap by making it clear that each party keeps what he has in his name, custody, possession or control at that time unless specifically stated otherwise.

The agreement should specify who is the party responsible for past, present and future debts. This clause specifies the division of obligations. It should also provide the penalty for a breach of its provisions.

The agreement should provide that each party releases and discharges the other, his/her heirs, executors, representatives, etc., from all past claims under law against the other (except, usually, causes of action for divorce, separation or breach of the agreement). A general release clause is the standard format for this provision.
Each party should waive the right to take an elective share against the estate of the other and to act as administrator or executor of the estate of the other, including the right to inherit from the other pursuant to a previously executed will. As the caption indicates, rights to a claim in the estate of the other party are waived. This provision does not in any way eliminate or reduce the rights of children.


This custody provisions of a marital agreement should cover the type of custody (sole custody to the (Mother)(Father); joint custody; shared custody; physical custody;) as well as the visitation, parenting or access schedule. It should cover who picks up and returns the child, and specify when and where the child is to be picked up and returned . It should state that the child is not to be known by any other name, and cover telephone access; internet or e-mail communication and access; immediate notification to non-custodian of any emergencies or change of location; access to the child when the child is ill. Details as to dates and times of pick-up and return must be spelled out and may cover, for example: weekend parenting to the non-custodian (Friday night through Sunday night); weekday dinner or visit or overnight visit; alternate public and religious holidays, school recesses, summer vacation, father's day, mother's day; the child's birthday, and the parent’s birthdays. It should indicate if a parent may relocate and if the custodial parent is to be restricted to a state or mile radius.
It is not considered consulting if the custodial parent makes the ultimate decision when the parties are unable to agree. Joint decision making means the parents must agree or resolve it through court or arbitration proceedings. Areas to consider include: Education, legal, religion, health, confirmation, and Bar/Bat Mitzvah.

A key to this provision is to be explicit concerning the amount and duration of maintenance. This may be or may include a weekly or monthly cash allowance which separates maintenance from child support for tax purposes. Termination events should be clear and specific. Generally, maintenance continues during the payor's lifetime until either the death or remarriage of the recipient, whichever is earlier, or the termination of the obligation period to pay maintenance.
In general, a provision in a judgment in a matrimonial action for maintenance does not survive the death of the payor, nor of the recipient. The support obligation does not survive the death of the husband in the absence of an agreement by the parties and upon the death of either spouse the obligation of support and maintenance ceases. However, by agreement of the parties, alimony payments may be extended beyond the death of the obligor so as to be enforceable against his or her estate. This can only be done by agreement of the parties and not by direction of the court.

Where a final judgment of divorce or a final judgment of annulment or declaration of nullity has been rendered, which contains an alimony award, the court, upon application of the obligor on notice, and upon proof of the marriage of the recipient after the final judgment, must annul the alimony award. Where a wife's second marriage has been declared a nullity or annulled by a judgment, the obligation of the first husband to pay alimony to his former wife is not revived.

The Court has discretion to terminate a prior maintenance or alimony order "upon proof that the wife [or former wife] is habitually living with another man and holds herself out to be his wife, although not married to such man." In general, the alimony or maintenance provisions of an agreement which are incorporated into a dissolution judgment and not merged into it remain in effect even though relief is obtained pursuant to New York Domestic Relations Law, Section 248.

To assure that maintenance payments are deductible the payments must terminate on the death of the payee. Other elements of support include: automobile expenses, costs of operating the marital home, exclusive occupancy, credit cards, cobra, medical, hospital, psychiatric, orthodontic, pharmacy and dental Expenses and/or Insurance Coverage.


Where an agreement makes provision for child support, the paying spouse's obligation ordinarily terminates upon the children becoming emancipated or reaching their majority, which is 21 in New York, unless the contract provides that his or her obligation of support will continue after the age of 21 or the emancipation of the child. The fact that a child has been inducted into the Armed Forces does not release the paying parent from the performance of his or her obligation under the terms of a separation agreement to make specified payments for the support of the child. The fact that children have been emancipated before reaching age 21 does not release the paying parent from his or her obligation to support them under the terms of a marital agreement, unless the agreement provides that emancipation will have such effect.
Parents can not contract away their children's right to receive adequate support. They never could. A separation agreement cannot eliminate or diminish either parents duty to support their child. The initial adequacy of an agreement may be challenged at any time. The terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach of contract . An agreement to waive the right to initially seek or obtain a modification of child support violates public policy and is void .


The parties should provide in the agreement, where appropriate, for private school, university or college, professional or graduate school, if any. Often the terms include the requirement of the payor's consent to the choice of school, which consent will not be unreasonably withheld. Exactly what expenses are included should be detailed in the Agreement.

This clause usually provides for the payor to pay for a camp, teen tour, or summer activity, provided the payor is consulted in advance and consents to it, which consent will not be unreasonably withheld). The exact expenses included must be detailed in the Agreement.

This section usually provides that one or both parties payor will pay for medical, hospital or dental insurance for the child (comparable to that which presently exists). In addition, the payor will generally pay all reasonable and necessary medical, dental and hospital expenses for the unemancipated child; this may or may not include cosmetic or elective treatment/surgery, unless the payor is consulted and agrees. The custodial parent must comply with all requests for documentation. Again, the custom is, except
for emergencies, that the custodial parent must obtain the payor's approval before committing the child to a course of care or treatment.

The Agreement should provide the age at which child support payments terminate if sooner than age 21. Where an agreement makes provision for the support of the children of the marriage, the paying spouse's obligation for each child, respectively, terminates upon each child attaining age 21. Child support obligations beyond age 21 cannot be compelled unless the contract provides that a parent's obligation of support will continue to a later date.

New York law requires that the parties must be advised of the provisions of the New York Child Support Standards Act (“CSSA”) as contained in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b). They must also have been advised that a child support agreement which departs from the child support guidelines must provide that the parties have been made aware of the Child Support Standards Act (CSSA) and that the parties are aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The agreement must also include the dollar amount of the presumptively correct support that would have been calculated pursuant to the CSSA, and must state the parties' reasons for the parties’ departure from the guidelines. Even an agreement which does not opt-out of the CSSA guidelines is required to provide that the parties have been made aware of the CSSA and that they were aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The parties may expressly waive the provisions of the CSSA to the extent permitted by law.
The parties must have also been advised that the "basic child support obligation" provided in New York Domestic Relations Law §240(1-b) and New York Family Court Act §413(1)(b) would presumptively result in the correct amount of child support to be awarded. In the event that the settlement agreement or stipulation deviates from the "basic child support obligation", the foregoing statutes require this Agreement or Stipulation to specify the amount that such "basic child support obligation" would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount, in order to assure that the parties are aware of their rights and obligations under the Child Support Standards Act and knowingly waive such rights. Such provision may not be waived by either party or counsel.
The Child Support Standards Act provides that nothing contained in section 240(1-b)(b)(h) and New York Family Court Act §413(1)(h) shall be construed to alter the rights of the parties to enter into validly executed Agreements or Stipulations which deviate from the "basic child support obligation" provided such Agreements or Stipulations comply with the provisions of New York Domestic Relations Law §240(1-b)(h) and New York Family Court Act §413(1)(b)(h).
New York Domestic Relations Law Section 240(1-b) and New York Family Court Act §413(1)(b) provide the court shall calculate the "basic child support obligation", and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation. In arriving at the "basic child support obligation" the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage." The "child support percentage" is defined as: 17% of the combined parental income for one child; 25% of the combined parental income for two children; 29% of the combined parental income for three children; 31% of the combined parental income for four children; and no less than 35% of the combined parental income for five or more children. Where there are five or more children, the court must exercise its discretion as to the amount of the child support percentage. Where the combined parental income exceeds $80,000 per year, after the court determines the non-custodial parent's share of the basic child support obligation, it must next determine the amount of child support for the amount of combined parental income in excess of $80,000. It may do so, in the exercise of its discretion, through consideration of ten discretionary factors and/or the child support percentage. There are two additional items of support which are part of and which the court must consider in determining the "basic child support obligation" and two items it may consider in determining the non-custodial parent's share of the "basic child support obligation." When a custodial parent is working or receiving education leading to employment, reasonable child care expenses must be apportioned pro rata, in the same proportion as each parent's income is to the combined parental income. Health care expenses must also be apportioned pro rata in the same proportion as each parent's income is to the combined parental income. If the custodial parent is seeking work, child care expenses as a result thereof may be apportioned. Educational expenses may also be awarded. They need not be apportioned. These expenses are discretionary and not based on a percentage of $80,000. Child care expenses for seeking work and educational expenses need not be awarded in proportion to the combined parental income.
If a party is unrepresented party he/she is required to receive a copy of the Child Support Standards Chart promulgated by Commissioner of Social Services pursuant to New York Social Services Law Section 111-I. The parties may, in their agreement, waive the right to collect the child support payments by an income deduction order, and waive the right to enforce the provisions of the agreement through Child Support Enforcement Services.

Generally, a spouse purchases or maintains an existing policy of life insurance for the benefit of the child in an agreed upon amount (usually sufficient to cover the child support obligations for the child unless otherwise provided by will). It is not unusual for life insurance to be purchased or maintained for the payor's maintenance obligations or obligations to pay out a cash sum over a period of time. Provision must be made to verify that the insurance remains in effect and the premiums paid.

Equitable distribution is a tax-free distribution not included in the income of the recipient or deductible to the payor. Furthermore, pension and retirement funds can be transferred to the recipient by a Qualified Domestic Relations Order ("QDRO"), leaving its retirement nature intact while avoiding violation of the anti-alienation provisions of ERISA, with its resultant penalties and taxes to the transferor. Likewise, the recipient will take the transferor's basis in any real property, recognizing the gain only at the time of the sale to a third party and only to the extent it has appreciated since the time of purchase (not the date of transfer). The transfer of appreciated property is considered a gift for tax purposes. Other items to consider, for example:

Consider an installment payment arrangement versus a lump sum. Assuming a lump sum arrangement is preferred, be specific on the date it is to be given and its form (check, wire transfer or change of title on account).

Stocks and Bonds
Be sure the value placed has a date, an approximate value and an understanding that fluctuations in valuation are not a basis for claiming fraud.

Must be itemized. Indicate its description, purchase price, market value, source of funds, separate or personal and total value.

Must be itemized. Indicate its description, purchase price, market value, present location.

Indicate whether the recipient is (or is not) responsible for all expenses attendant to the operation of the automobile, including insurance, upkeep, gasoline.

Real Property

Indicate if title and possession are to be transferred to the husband/wife or sold. Specify who pays the cost of the transfer. If a joint tenancy or tenancy in common and title is transferred to one spouse, provide for relinquishment of all claims and rights to the property and release the transferor from all notes and obligations attributable to the property. A hold harmless clause should be employed as well as an agreement for a
party to use his/her best efforts to have her/him removed as obligor. If the property is to be sold, specify the details of sale, sale price, costs, brokers, expenses, legal fees.

Real Estate Considerations in General:

Properties held jointly reverts to the survivor should one party die before the dissolution of the marriage. To alter this situation you may change the manner in which title is held immediately upon execution of the Agreement, but you must specifically provide for this in the Agreement. It is recommended to have the transfer documents executed simultaneously with the Agreement. All real property transferred, if any, must provide for the tax consequences, costs of sale and carrying costs.

Exclusive Occupancy of the marital residence

Be sure that the occupant is obligated to remove himself/herself by a date certain. If the residence is to be sold, he/she must agree to leave the premises a certain number of days from the execution of a contract for sale of the premises. Specify who is responsible for any expenses attendant to operating the home. Make provisions for penalty upon failure to leave. Consider who will pay the moving costs and arrange the move. Make provisions to access the premises for inspection or otherwise. Photographing or videotaping the premises before leaving the premises is wise.

Personal Property.

Make lists, lists, lists and more lists of who gets what. The knickknacks, bric-a-brac, crystal, china, furniture and the like are nightmarish to divide, so forgotten items may be gone forever.

Pension Plans and Retirement Funds

Generally, transferring a portion of these funds to the spouse as part of the Equitable Distribution is advantageous, as previously noted. The transferee receives the retirement funds on a tax-free basis. They continue to accumulate tax free until distribution to him/her from the plan. The transferor makes the transfer tax-free and has no penalty. It is important to net out the value of this tax free exchange in calculating the Equitable Distribution.


The agreement should provide who is responsible for errors, omissions, penalties, assessments, and interest on previously filed joint income tax returns and the costs associated with opposing or defending an audit or assessment, including accounting fees. So long as the parties remain married, they can and should file joint tax returns. Determine how the refund, if any, is going to be distributed. Make provision as to who claims the child(ren) as an exemption. Unless provided otherwise in writing, the custodial parent is entitled to the exemption. To do otherwise, the custodial parent must sign IRS form 8332 to entitle the non-custodial parent to the exemption.


The agreement should include the name and address of the attorneys who represented each of the parties and a statement that each counsel was chosen freely. It should indicate that each party had an opportunity to obtain independent tax advice. The parties should acknowledge the extent of the financial disclosure provided and /or the opportunities for disclosure of the assets and income of each party. It is suggested, at a minimum, that each party provide a Net Worth Statement.


If one party is to contribute, partially or wholly, to the legal fees of the other, it is generally best for the payor to contribute a lump sum amount on behalf of the recipient's legal fees in payment of the litigation or for the negotiation of the agreement, and any subsequent action for dissolution. The recipient should hold the payor harmless for any other fees and the recipient's lawyer should be required to waive all other claims for the legal fees for the agreement or dissolution proceedings against the payor.


Both parties should agree (if relevant) to this provision if they were married in a religious ceremony because it is required by law in states such as New York. The agreement should make provision for obtaining the religious divorce by a specific date, for the payment of the costs and fees, and to require that both spouses cooperate with the religious authority.

Except as provided in the agreement, each spouse should specifically waive all rights and interests, if any, to the other's businesses, licenses, professional degrees and other assets, real and personal, in that party's possession, custody or control, whether or not mentioned in the agreement. If maintenance is not being paid there should be mutual waivers of maintenance, so that an application may not be made for maintenance after the parties are separated or divorced. The same holds true with regard to retirement benefits, pensions and counsel fees.


1. The parties have been advised at length by their respective counsel as to their rights and obligations under the "Equitable Distribution Law", New York Domestic Relations Law Section 236[B]. Each of them has been specifically advised as to his or her rights as to full disclosure from the other party concerning the income, prospects, holdings, assets and liabilities of the other under the terms of that statute and of the relevant case law.
2. Each of the parties has provided information to the other to prepare a joint statement of net worth, a copy of which is annexed hereto wherein each one of them has represented to the other, the state of their finances and the status of their assets and debts, and upon which each has relied in the execution of this Agreement. The Wife has relied upon the Husband's representation as to his income and assets, as set forth in such joint net worth statement, in executing this Agreement.


Under certain circumstances, an agreement will be repudiated where the parties reconcile and resume cohabitation. There should be a provision that the agreement shall not be invalidated or otherwise affected by a reconciliation between the parties or by a resumption of the marital relations between them, unless the reconciliation or resumption is documented by a written statement signed and acknowledged by the parties.

The agreement should contain a provision acknowledging that each party had full knowledge and understanding of all of its provisions, and an opportunity to question his/her attorney with regard to the provisions of the agreement. The parties should acknowledge that the terms of the agreement have been explained to them and it is fair and was freely entered into, and is not the result of any fraud, duress or undue influence exercised by either party upon the other.

The agreement should provide for the withdrawal an discontinuance of any other pending actions between the parties, with prejudice, and, if the parties intend to obtain a divorce or dissolution, for one of the parties to proceed to obtain a dissolution .

The parties may agree that in the event that either party brings an action or proceeding to cancel or set aside the agreement, or applies to any court for an extension or upward modification of either or both the maintenance and child support provisions of the agreement, whether successful or not, he/she will reconvey all assets he/she received under the agreement. The purpose of this clause is, obviously, to prevent a challenge to the agreement, and it will not be enforced if the court holds that the agreement is void.

The term "boilerplate clauses" refers to the usual, commonly used clauses that are almost always found in matrimonial agreements.


The agreement should contain a provision stating that if any part of the Agreement is held void or unenforceable, the balance of it will remain in full force and effect. Without such a clause, if a material provision or dependent clause of an agreement that does not have a severability clause is held void, the entire agreement may be declared void.

The agreement should contain a provision stating that, except as otherwise stated in the agreement, all the provisions of the agreement shall be binding upon the respective heirs, next of kin, executors and administrators of the parties.


As long as the parties have rights and obligations toward one another, or children who are unemancipated, they must be able to communicate with one another. The agreement should require them to notify each other of their change of address and telephone number so long as they have such obligations.

The agreement should contain a provision indicating the addresses to send any future notices required by the agreement.

The agreement should contain a provision setting forth the formalities with which the parties must comply (such as a written and acknowledged change) to amend or modify the agreement or waive any of its terms. It should specificy that any waiver is not a
continuing waiver and shall not prevent or estop such party from thereafter enforcing such provision, right or option. The failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.


The agreement should contain a provision stating that each clause of the agreement is independent of and may be enforced independently of any other clause. This permits enforcement of the balance of the agreement even after the breach of a particular provision, and a party who has breached a portion of the agreement may continue to seek enforcement of the balance of the agreement.


The agreement should contain a provision setting forth the law which shall apply
to the interpretation and construction of the agreement.
In the absence of anything evincing a contrary intention of the parties or violating the public policy of the state, the validity, effect, and construction of a separation agreement is governed by the law of the place where the contract was made, particularly where this place and the matrimonial domicil are the same.
The intention of the parties as to the law governing the validity, construction, and effect of a marital agreement will be respected in the absence of anything violating the public policy of the state.


The agreement should contain a provision that each party will execute and deliver all documents and take all further steps as are necessary to effectuate the terms of the agreement, usually at no cost to the other party.

The agreement should contain a provision that it is the complete agreement between the parties, and that there are no side deals, and there are no representations, other than as set forth in the agreement, that are relied upon by either party.


Incorporation by Reference: A provision regarding the incorporation of the terms of the agreement in a judgment of dissolution or support order, in the event of a divorce, dissolution or support proceeding. This is extremely important to include.

Survival or Merger: A provision indicating the intent of the parties as to whether the agreement survives or merges into a subsequent judgment of dissolution. If it survives, modification may be limited by state law.

Contractual terms as to property settlements ordinarily are not subject to judicial change. Courts will not "rewrite" the maintenance provisions agreement unless there is a finding of existing hardship under DRL 236(B)(9)(b). When an agreement that has been incorporated into a dissolution judgment, if enforcement or modification is sought does the agreement still exist or was it merged into the judgment? The answer depends upon the intention of the parties as expressed in the agreement. Usually a matrimonial agreement provides that its terms shall be incorporated into the court order or judgment but that the agreement shall survive. However, an agreement may say nothing and may cease to exist after judgment. The traditional advantage to the wife of having the agreement survive was that in the event the husband failed to perform the contract, it gave her a more expeditious remedy of suit on the contract in addition to the special relief provided for the enforcement of judgments in the New York Domestic Relations Law and other statutes.
The advantage to the husband if the agreement survived was that ordinarily it precluded an upward modification of alimony/maintenance (due to a change in circumstances) so that his financial obligation was relatively fixed and certain, unless the former wife became destitute and was a candidate for public assistance.Again, the intention of the parties controls whether the agreement is merged into the judgment or is merely incorporated therein and survives intact.

The agreement should contain a provision that a party who is in default of his/her obligations under the agreement will be liable for the counsel fees and expenses of the other party incurred to enforce the agreement in a plenary action. Without such a provision, counsel fees might not be awarded in any plenary action to enforce the agreement.

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