New York Separation Agreements Law


Divorce – Separation Agreements – New York

Note:  This summary is not intended to be an all inclusive discussion of the law of separation agreements in New York State, but does include basic and other provisions.

General Summary:  Separation and Property Agreements may be entered into before a divorce is filed to be effective

Statutes:

New York State Consolidated Laws
ARTICLE 13
PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION

S  236.  Special controlling provisions; prior actions or proceedings; new actions or proceedings.
PART B
NEW ACTIONS OR PROCEEDINGS

Maintenance  and  distributive award.

1. Definitions.

Whenever used in this part, the following terms shall have the respective meanings  hereinafter set forth or indicated:

a.  The term “maintenance” shall mean payments provided for in a valid agreement between the parties or awarded by the court in accordance with the provisions of subdivision six of this part,  to  be  paid  at  fixed intervals  for  a definite or indefinite period of time, but an award of maintenance shall terminate upon the death of either party or  upon  the recipient`s  valid or invalid marriage, or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred  thirty-six  of this part or section two hundred forty-eight of this chapter.
b. The term “distributive award” shall mean payments provided for in a valid  agreement between the parties or awarded by the court, in lieu of or to supplement, facilitate or effectuate the division or  distribution of property where authorized in a matrimonial action, and payable either in  a  lump  sum or over a period of time in fixed amounts. Distributive awards shall not include payments which are treated as  ordinary  income to  the  recipient  under  the  provisions of the United States Internal Revenue Code.
c. The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part.  Marital property shall not include separate property as hereinafter defined.
d. The term separate property shall mean:

(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3)  property  acquired  in  exchange  for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
(4) property described as separate property by  written agreement of the parties pursuant to subdivision three of this part.

e.  The term “custodial parent” shall mean a parent to whom custody of a child or children is granted by a valid agreement between the  parties or by an order or decree of a court.
f.  The  term  “child support” shall mean a sum paid pursuant to court order or decree by either or both parents or pursuant to a valid  agreement  between  the  parties  for  care, maintenance and education of any unemancipated child under the age of twenty-one years.

2. Matrimonial actions.

Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for  an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to  obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the  effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective  date of this part shall be heard and determined in accordance with the provisions of part A of this section.

3. Agreement of the parties. An agreement by the parties, made  before or  during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the  parties,  and acknowledged  or  proven  in the manner required to entitle a deed to be recorded. Such an agreement may include (1) a contract to make a  testamentary provision of any kind, or a waiver of any right to elect against the  provisions  of a will; (2) provision for the ownership, division or distribution of separate and marital property;  (3)  provision  for  the amount  and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care,  education and  maintenance of any child of the parties, subject to the provisions of section two hundred forty of this chapter. Nothing in this subdivision shall be deemed to affect the validity  of any agreement made prior to the effective date of this subdivision.

4. Compulsory financial disclosure.

a. In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue,  there shall  be  compulsory  disclosure  by  both  parties of their respective financial states. No showing of special circumstances shall be  required before  such disclosure is ordered. A sworn statement of net worth shall be provided upon receipt of a notice  in  writing  demanding  the  same, within  twenty  days after the receipt thereof. In the event said statement is not demanded, it shall be filed with the clerk of the  court  by each  party,  within  ten  days  after joinder of issue, in the court in which the proceeding is pending.  As used in this part,  the  term  “net worth”  shall  mean  the  amount  by which total assets including income exceed total liabilities including fixed financial obligations. It shall include all income and assets of whatsoever kind and nature and wherever situated  and  shall  include  a  list  of all assets transferred in any manner during the preceding three years, or the length of the  marriage, whichever  is  shorter;  provided, however that transfers in the routine course of business which resulted in an exchange of assets  of  substantially  equivalent  value  need not be specifically disclosed where such assets are otherwise identified in the statement of net worth. All  such sworn  statements  of  net  worth  shall be accompanied by a current and representative paycheck stub and  the  most  recently  filed  state  and federal  income  tax returns including a copy of the W-2(s) wage and tax statement(s) submitted with the returns. In addition, both parties shall provide information relating to any and all group health plans available to them for the provision of care or other medical benefits by insurance or otherwise for the benefit of the child or children for  whom  support is  sought,  including  all  such  information  as may be required to be included in a qualified  medical  child  support  order  as  defined  in section  six hundred nine of the employee retirement income security act of 1974 (29 USC 1169) including, but not limited to:

(i) the  name  and last  known  mailing  address  of each party and of each dependent to be covered by the order;
(ii) the identification and a description of  each group  health plan available for the benefit or coverage of the disclosing party and the child or children for whom support is sought;
(iii)  a detailed description  of the type of coverage available from each group health plan for the potential benefit of each such dependent;
(iv) the identification of the plan administrator for each such group health plan and  the  address  of such administrator;
(v) the identification numbers for each such group health plan; and (vi) such other information as  may be  required  by  the court. Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in  examination  before  or  during trial.

b.  As  soon  as  practicable  after a  matrimonial  action  has been commenced, the court shall set the date or dates the parties  shall  use for  the  valuation  of  each  asset. The valuation date or dates may be anytime from the date of commencement of  the  action to  the  date  of trial.

5.  Disposition  of property in certain matrimonial actions.

a. Except where the parties have provided in an agreement for the  disposition  of their property pursuant to subdivision three of this part, the court, in an  action  wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage,  and in  proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the  respective rights  of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.
b. Separate property shall remain such.
c.  Marital  property  shall  be  distributed  equitably  between  the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage  and  the  age  and  health  of  both parties;
(3)  the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6)  any  equitable claim  to, interest in, or  direct or indirect contribution made to the acquisition of such marital property by  the party  not  having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component  asset or  any  interest  in  a  business,  corporation  or profession, and the economic desirability of retaining such asset  or  interest  intact  and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13)  any other factor which the court shall expressly find to be just and proper.

e. In any action in which the court shall determine that an  equitable distribution  is  appropriate  but would be impractical or burdensome or where the distribution of an interest  in  a  business,  corporation  or profession would be contrary to law, the court in lieu of such equitable distribution  shall make a distributive award in order to achieve equity between the parties. The court  in  its  discretion,  also  may  make  a distributive  award  to  supplement, facilitate or effectuate a distribution of marital property.
f. In addition to the disposition of property as set forth above,  the court may make such order regarding the use and occupancy of the marital home  and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.
g. In any decision made pursuant to this subdivision, the court  shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.
h.  In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier  to  remarriage,  as defined  in  subdivision  six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision.

6. Maintenance.

a. Except where  the  parties  have  entered  into  an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order temporary maintenance  or  maintenance in such amount as justice requires, having regard for the standard  of  living  of  the  parties  established  during  the marriage,  whether the party in whose favor maintenance is granted lacks sufficient property and income to provide  for  his  or  her  reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the  circumstances  of the case and of the respective parties. Such order shall be effective as of  the  date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the  court shall  direct,  taking  into account any amount of temporary maintenance which has been paid. In determining the amount and duration  of  maintenance the court shall consider:

(1)  the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2)  the  duration  of  the  marriage  and  the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to  become  self-supporting  and,  if  applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity  of  the  party  seeking maintenance  as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the  respective  homes of the parties;
(7) the tax consequences to each party;
(8)  contributions  and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career  or  career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11)  any other factor which the court shall expressly find to be just and proper.

b. In any decision made pursuant to this subdivision, the court  shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.

c.  The court may award permanent maintenance, but an award of maintenance shall terminate upon the death of either party or upon the recipient`s valid or invalid marriage, or upon modification pursuant to  paragraph  (b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter.

d. In any decision made pursuant to this subdivision the court  shall, where  appropriate,  consider  the effect of a barrier to remarriage, as defined in subdivision six of section two hundred  fifty-three  of  this article, on the factors enumerated in paragraph a of this subdivision.

7.  Child  support.

a. In any matrimonial action, or in an independent action for child  support, the court as provided in section two  hundred forty  of  this chapter shall order either or both parents to pay temporary child support or child support without requiring a showing of immediate or emergency need. The court shall make  an  order  for  temporary child  support  notwithstanding  that information with respect to income and assets of either or both parents may be unavailable.  Where  such information is  available, the court may make an order for temporary child support pursuant to section two hundred forty of this article. Such  order shall, except as provided for herein, be effective as of the date of the application therefor, and any retroactive amount of child support  due shall be support arrears/past due support and shall be paid in one sum or periodic sums, as the  court  shall  direct,  taking  into account  any  amount  of temporary child support which has been paid. In addition, such retroactive child support shall  be  enforceable  in  any manner  provided  by law including, but not limited to, an execution for support enforcement pursuant to subdivision  (b)  of  section  fifty-two hundred  forty-one  of  the  civil  practice law and rules. When a child receiving support is a public assistance  recipient,  or  the  order  of support  is  being enforced or is to be enforced pursuant to section one hundred eleven-g of the social services law, the court  shall  establish the amount of retroactive child support and notify the parties that such amount  shall  be enforced by the support collection unit pursuant to an execution for support enforcement as provided for in subdivision (b)  of section fifty-two hundred forty-one of the civil practice law and rules, or  in  such periodic payments as would have been authorized had such an execution been issued. In such case, the  court  shall  not  direct  the schedule  of  repayment  of  retroactive  support.  The  court shall not consider the misconduct of either party but shall  make  its  award  for child support pursuant to section two hundred forty of this article.

b. Notwithstanding any other provision of law, any written application or  motion  to  the court for the establishment of a child support obligation for persons not in receipt  of  family  assistance  must  contain either  a  request  for  child  support enforcement services which would authorize the collection of the  support  obligation  by  the  immediate issuance  of an income execution for support enforcement as provided for by this chapter, completed  in  the  manner  specified  in  section  111 g of  the  social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services,  has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined  that  the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section five  thousand  two hundred  forty-two  of  the  civil  practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such  request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be  made  to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social  security number of the parties; the date and place of the parties` marriage; the  name  and  date of birth of the child or children; and the name and address of the employers and income payors of the party from whom  child support  is sought. Unless the party receiving child support has applied for or is receiving such services,  the  court  shall  not  direct  such payments  to  be  made to the support collection unit, as established in section one hundred eleven-h of the social services law.

c. The court shall direct that a copy of any child support or combined child and spousal support order issued by the  court  on  or  after  the first  day  of October, nineteen hundred ninety-eight, in any proceeding under this section be provided  promptly  to  the  state  case  registry established  pursuant  to  subdivision  four-a  of  section  one hundred eleven-b of the social services law.

8. Special relief in matrimonial  actions.

a.  In  any  matrimonial action  the  court  may  order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care  and related  services  for  either spouse or children of the marriage not to exceed such period of time as such party shall be obligated  to  provide maintenance, child support or make payments of a distributive award. The court may also order a party to purchase, maintain or assign a policy of accident  insurance  or  insurance  on the life of either spouse, and to designate in the case of life insurance, either spouse  or  children  of the  marriage,  or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall  cease  upon  the  termination  of  the spouse`s duty to provide maintenance, child support or a distributive award. A copy of such order shall be served, by  registered mail,  on the home office of the insurer specifying the name and mailing address of the spouse or children, provided that failure to so serve the insurer shall not affect the validity of the order.
b. In any action where the court has  ordered  temporary  maintenance, maintenance,  distributive  award or child support, the court may direct that a payment be made directly to the other spouse or  a  third  person for  real  and  personal  property  and  services furnished to the other spouse, or for the rental or mortgage amortization or interest payments, insurances,  taxes,  repairs or other carrying charges on premises occupied by the other spouse, or for both payments to the other  spouse  and to  such  third persons. Such direction may be made notwithstanding that the parties continue to reside in the  same  abode  and  notwithstanding that  the  court  refuses  to  grant  the  relief requested by the other spouse.
c. Any order or judgment made as in this section provided may  combine any  amount  payable to either spouse under this section with any amount payable to such spouse as child support or  under  section  two  hundred forty of this chapter.

9. Enforcement and modification of orders and judgments in matrimonial actions.

a. All orders or judgments entered in matrimonial actions shall be  enforceable  pursuant  to  section  fifty-two  hundred  forty-one or fifty-two hundred forty-two of the civil practice law and rules,  or  in any other manner provided by law. Orders or judgments for child support, alimony  and  maintenance  shall also be enforceable pursuant to article fifty-two of the civil practice law and rules upon a debtor`s default as such term is defined in paragraph seven of subdivision  (a)  of  section fifty-two  hundred  forty-one  of  the civil practice law and rules. The establishment of a default shall be subject  to  the  procedures  established  for the determination of a mistake of fact for income executions pursuant to subdivision (e) of section fifty-two  hundred  forty-one  of the civil  practice  law  and rules. For the purposes of enforcement of child support orders or combined spousal and child support orders pursuant to section five thousand two hundred forty-one of the civil practice law and rules, a “default” shall be deemed to  include  amounts  arising from  retroactive  support.  The court may, and if a party shall fail or refuse to pay maintenance, distributive award or child support the court shall, upon notice and an opportunity to  the  defaulting  party  to  be heard,  require  the  party to furnish a surety, or the sequestering and sale of assets for the purpose of enforcing any award  for  maintenance, distributive  award  or  child support and for the payment of reasonable and necessary attorney`s fees and disbursements.

b. Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient`s inability to be self-supporting or a  substantial change  in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial  hardship.  Where, after the effective date of this part, a separation agreement remains in force no modification  of  a  prior  order  or  judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either  party,  in  which event the judgment or order as modified shall supersede the terms of the prior  agreement  and  judgment  for  such period of time and under such circumstances as  the  court  determines.  Provided, however, that no modification or annulment  shall  reduce or annul any arrears of child support which have accrued prior to the date of application to annul  or modify  any prior order or judgment as to child support. The court shall not reduce or annul any arrears of maintenance which have  been  reduced to  final  judgment  pursuant  to section two hundred forty-four of this chapter. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the defaulting party shows good cause for failure to make  application  for  relief  from  the  judgment or order directing such payment prior to the accrual of such arrears and  the  facts  and  circumstances constituting  good  cause are set forth in a written memorandum of decision.  Such  modification may increase maintenance or child support nunc pro tunc as of  the  date  of  application  based  on  newly  discovered evidence.  Any  retroactive  amount of maintenance, or child support due shall, except as provided for herein, be paid in  one  sum  or  periodic sums, as the court directs, taking into account any temporary or partial payments  which  have been made. Any retroactive amount of child support due shall be support arrears/past due support. In addition, such  retroactive  child support shall be enforceable in any manner provided by law including, but not limited to,  an  execution  for  support  enforcement pursuant  to  subdivision  (b) of section fifty-two hundred forty-one of the civil practice law and rules. When a child receiving  support  is  a public  assistance  recipient, or the order of support is being enforced or is to be enforced pursuant to section one  hundred  eleven-g  of  the social services law, the court shall establish the amount of retroactive child  support and notify the parties that such amount shall be enforced by the support collection unit pursuant  to  an  execution  for  support enforcement  as  provided  for  in  subdivision (b) of section fifty-two hundred forty-one of the civil practice law and rules, or in such  periodic  payments  as would have been authorized had such an execution been issued. In such case, the court shall not direct the schedule of  repayment  of  retroactive  support. The provisions of this subdivision shall not apply to a separation agreement made prior to the effective date  of this part.

c. Notwithstanding any other provision of law, any written application or  motion  to  the court for the modification or enforcement of a child support or combined maintenance and child support order for persons  not in  receipt of family assistance must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution  for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social  services law;  or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the  availability  of  such  services,  has  declined  them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined  that  the  applicant understands that an income deduction order may be issued pursuant to subdivision  (c)  of  section  five thousand two hundred forty-two of the civil practice law and rules without other child support enforcement  services and  that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services  to  the  support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of such request shall be accompanied by the name, address  and  social security number of the parties; the date and place of the parties` marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party ordered to pay child support to the other party. Unless the party receiving child support or combined maintenance and  child  support has applied for or is receiving such services, the court shall not direct such payments to  be  made to the support collection unit, as established in section one hundred eleven-h of the social services law.

d. The court shall direct that a copy of any child support or combined child and spousal support order issued by the court on or after the first day of October, nineteen hundred ninety-eight, in any proceeding under this section be provided  promptly to the state case registry established  pursuant to subdivision  four-a  of section one hundred eleven-b of the social services law.

Case Law:

The property settlement agreement is an independent contract that is subject to the principles of contract interpretation.  Rainbow v. Swisher, 72 N.Y.2d 106, 109.