The Domestic Relations Law permits married parties to enter into an agreement, provided that the agreement is in writing, subscribed by the parties, and acknowledged in the manner required to entitle a deed to be recorded.
The statute further provides that the agreement may include provisions relating to distribution of the parties estate. It may also include provisions for the ownership division or distribution of separate and marital property; and provisions relating to the amount and duration of maintenance, provided that the terms were fair and reasonable at the time of the making of the agreement, and are not unconscionable at the time of entry of the final judgment. Thus, the separation agreement permits the parties without the direct intervention of the court to arrive at a settlement that they deem most appropriate for their individual circumstances.
As with a prenuptial agreement there should be full financial disclosure of the party’s assets and each party should be represented by separate counsel.
Terms of Separation Agreement
A complete separation agreement, typically addresses the following issues:
- Separation and Non-Molestation
- Separate Ownership
- Responsibility for Marital Debts
- Equitable Distribution of Marital Property
- Spousal Alimony
- Mutual Releases, and Releases of Estate Rights
- Waiver of Retirement Income Accounts and Deferred Compensation
- Child Custody
- Child’s Residence
- Parenting Arrangements (Visitation)
- Emancipation Events for the Child
- Child Support
- Subsequent Reconciliation of the Spouses
- Health Insurance for the Child
- Life Insurance for Spouse and/or Child
- Religious Divorce
- Legal Representation of Parties
- Payment of Counsel Fees for each Spouse
- Full Disclosure of all Financial Information
- Waivers Under Equitable Distribution Law
- Legal Interpretation in Which State
- Modification of Agreement
- Matrimonial Decrees to Include Certain Provisions
- Legal Fees in Event of Default or Breach
The terms of the Separation Agreement is usually incorporated into the Divorce Judgment, but normally also survives as an independent enforceable contract.