New York law attempts to encourage the settlement of matrimonial disputes by written agreement, to avoid contested litigation. There are many common aspects of such Agreements, such as the following:
- Separate residence of the Husband and Wife.
- A Non-Molestation Clause.
- Custody and Access/decision-making responsibility and parenting time. (This section will state whether there shall be sole or shared custody (physical and legal). Provision will also be made for regular access to and communication with the children, as well as to consultation between the parents regarding major decisions affecting the children.The Agreement may provide for modification of access rights, as the child gets older.)
- Support and Maintenance of the Spouse and Children. (The provision for child support will state the amount of the obligation and when it terminates and allocate responsibility for payment of healthcare, educational (including college) and childcare expenses, and may include responsibility for payment of extracurricular expenses such as summer camp and sports activities. This section will also include a statement of the parents’ income and describe the manner in which child support is computed under the New York Child Support Guidelines. The provision for maintenance will state the amount and duration of payments and may state, among other things, the circumstances when the obligation may be modified, such as the cohabitation or remarriage of the person receiving the maintenance. In addition, there may be provision for the regular exchange of financial information.)
- A description of separately owned property.
- The sale and occupancy of real property, including the marital residence.
- The division of personal property.
- Life insurance coverage. (This potion of the Agreement will designate the person(s) responsible to maintain and pay premiums. The provision for life insurance coverage will state the ownership of the policy (ies), the duration and amount of the coverage (including whether a declining benefit is permitted) and who is to be designated beneficiary. Where minor children are the beneficiaries, a parent may be named to receive the policy benefits as a “trustee” for the benefit of the children.)
- Responsibility for past and future debts.
- Release and discharge of claims against each spouse.
- Estate rights and waivers.
- Health insurance coverage. (This provision will designate the person responsible for maintaining and paying for such coverage and the duration of coverage.)
- Payment of health care expenses not covered by insurance.
- Statement of legal representation and attorney fees. (The Agreement will designate responsibility for the payment of legal fees in connection with the negotiation and preparation of the Agreement and with respect to any action for divorce.)
- Disclosure of income, assets and finances.
- The effect of reconciliation.
- Tax returns and tax liabilities. (There may be provision with respect to the entitlement to claim children as dependents and whether certain payments are intended to be deductible by the payor and included in the payee’s income for tax purposes.)
- The equitable distribution of property. (Clauses often address the occupancy, ownership and sale of real estate, the allocation of marital debts, the division and closing of accounts and the manner in which household furnishings are to be divided. The Agreement may also provide for the division or transfer of business interests.)
- Notification as to change of address, telephone numbers and email.
- Enforcement – (The party breaching (violating) the Agreement to pay the other party’s legal fees and expenses, if the matter is not resolved without litigation within a specified time period.)
The above is by no means exhaustive. Each agreement should be drafted to meet the
particular circumstances of the Husband and Wife.