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If you and your spouse have decided to get a divorce and you have reached an agreement on issues such as who is obligated to pay spousal and child support, custody and visitation arrangements and property rights, you may want to consider entering into a marital settlement agreement.
Also referred to as a stipulation of settlement, this contract is filed with the court to become part of your final divorce decree.
Agreeing to a marital settlement with your spouse can remove much of the stress that is already part of what can be an emotionally stressful situation. By agreeing in advance to the most common issues in finalizing a divorce, you and your spouse can avoid misunderstandings and perhaps multiple court appearances.
Essentially, you and your spouse can present the court with a thoughtful, negotiated and carefully written agreement to end your union. In turn, both of you will experience a quick divorce that does not cost as much if it lingers because you cannot agree. You will avoid enduring a time-consuming and costly trial.
Property Division in a Marital Settlement Agreement
When it comes to getting a divorce, New York is an equitable distribution state. This means that anything considered marital property will be divided fairly by law when you divorce. The types of properties, assets and liabilities that can be included in a marital settlement agreement are:
• Investments – stocks, bonds and equity stakes in corporations
• Joint bank accounts in both of your names
• Marital liabilities – mortgages, automobile loans and credit card debt
• Personal property – jewelry, art work, motorcycles, antiques, electronics, furniture, property that holds sentimental value
• Real property or interests held in real property – house, condo, co-op, vacation home, investment property
• Retirement accounts – 401k plans, pension funds
You or your spouse can make generous provisions for the children you share in the marital settlement agreement. Custody and visitation issues can also be included. However, neither of you are allowed to limit or omit the parental obligation to support your children.
Child custody, visitation and support issues will always be presented before the court. New York law requires the court to determine if decisions being made are done so in the interest of the children.
Marital Settlement Agreements are Enforceable Contracts
Because marital settlement agreements are valid enforceable contracts, a judgment is usually final and the divorce cannot be challenged. However, under limited circumstances you or your spouse might be able to challenge the validity of the judgment in this type of divorce settlement.
Typically, the court will not invalidate a marital settlement agreement when you and your spouse have negotiated the agreement, and you both are represented by counsel. While there are a few reasons that you may challenge the judgment, it could still be difficult to prove. Two reasons are discussed below.
Fraud. You and your spouse must submit a financial disclosure statement at the time you file for divorce. This is called a Sworn Statement of Net Worth. If you or your soon-to-be ex-spouse fail to disclose hidden property or assets, the court could refuse to enforce the agreement.
Additionally, disclosing the property or assets without being straightforward about the nature and value of the property and assets is grounds for the court to refuse to enforce the settlement agreement.
Mutual mistake. Another reasons that the court may decide not to enforce a marital settlement agreement is if you and your spouse make what is known as a mutual mistake. This is when you and your spouse entered into a marital settlement agreement believing you had apportioned with all of your assets before signing, only to find out that there were missing property and/or assets.
Although neither of you were aware that this property was missing when you signed the agreement, you can sign an amendment and have it notarized to correct the mistake.
Contact a New York Divorce Lawyer
With help from a New York divorce lawyer from the Spodek Law Group, you can be confident that the terms you and your spouse reach in the marital settlement agreement will be favorable to you. One of our lawyers will evaluate your case to determine the course of action according to New York’s divorce laws.
Furthermore, you never have to worry about hidden fees because we will be open and honest with you from the start. If you are considering a marital settlement agreement that is fair, give us a call.