A marital separation agreement is a legal contract between you and your spouse, where you both agree to live separate and apart. In most separation agreements, the parties also set forth their agreement regarding various ancillary and financial matters, including: how marital debts and property will be apportioned between the parties; to what extent either of the parties will be responsible for paying maintenance (alimony) to the other party; and (if applicable) financial and other issues relating to minor children. In most instances, they parties agree that the terms and provisions in the separation agreement will later be incorporated in a final judgment of divorce. New York courts strongly favor separation agreements, and encourage spouses to independently resolve marital issues.
In New York, a marital separation agreement must contain specific language. For example, unless your separation agreement contains the specific, legally-required acknowledgment language, your agreement will be invalid and will not be enforced by a court. Specifically,
Our detailed New York separation agreements have the terms, provisions and language that are required by New York's Domestic Relations Law. Our downloadable blank forms have been prepared by New York divorce lawyers with decades of experience. If you order a customized separation agreement, your form will be painstakingly prepared using the information and instructions that you provide. We offer free edits and revisions. The divorce specialists at DivorceToday.com are local (we are located in the Empire State Building) and experienced.
New York courts have overwhelmingly held that agreements to limit and/or waive maintenance (alimony) are generally valid and enforceable, provided that agreement was fair and reasonable when the agreement was signed and is not unconscionable at the time a judgment of divorce is entered. A maintenance waiver will not be enforced if the party who waived maintenance is "in danger of becoming a public charge." See e.g., Cron v. Cron, 8 A.D.3d 186, 187 (1st Dept. 2008) (holding that defendant's waiver of maintenance did not place her in danger of becoming a public charge and, accordingly, is not unconscionable); Bloomfield v. Bloomfield, 97 N.Y.2d at 194 (2001); General Obligations Law § 5-311.
The New York Court of Appeals has made clear, courts "are free to adjudge the validity of [a single provision] . . . without consequential effect on the remainder of the writing." Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 856 (1977). In Cron v. Cron, 8 A.D.3d 186 (1st Dept. 2008), the First Department found that a prenuptial agreement's child support provisions were unconscionable, and thus severed such provisions from the agreement without rescinding the entire writing. See also P.B. v. L.B., 19 Misc.3d 186, 192, 855 N.Y.S.2d 836, 842-43 (Sup. Crt. Richmond Cnty. 2008) (finding that "even though a part of a separation agreement is declared void, the separation agreement still retains vitality").
The best way to ensure that a court will enforce the remaining terms of the agreement is to specifically provide for "severance" in the body of your agreement. This is easily accomplished by including the following language in your agreement:
This Agreement shall be governed by the laws of the State of New York. Any provision or part of this Agreement contrary to the laws of the State of New York or any other State or Country having Jurisdiction shall not invalidate the other parts of this Agreement and said invalid part or provision shall be severable.
Yes. Indeed, your agreement will be incomplete if you do not include provisions regarding 401k accounts, pensions or other retirement assets that were acquired during the marriage. However, your agreement to divide a "qualified" retirement account is not- standing alone - sufficient. Division of qualified retirements assets requires an additional document: the QDRO. The term “QDRO” is an acronym for Qualified Domestic Relations Order.” There are very specific rules that govern the drafting and filing of QDRO forms. You need to consider these rules before you sign your separation or marital settlement agreement. If you wait until later, you may have already (unwittingly) sacrificed your rights. Retirement assets such as pensions, 401k's, profit sharing plans, and 403(b) plans (among others) are qualified, and this, under ERISA, require QDRO forms.
The language that you use in your marital settlement/separation agreement is pivotal because a court cannot issue a QDRO that is more expansive or encompassing than what is provided for in your agreement. Thus, if you are the nontitled spouse and you have entered into a separation agreement that makes no mention of early retirement benefits, the court will not enter a QDRO giving you an interest in such benefits. When a proposed QDRO conflicts with the language in a stipulation of settlement upon which it was based, the stipulation of settlement controls. Thus, the critical decisions regarding retirement accounts must be made before you sign a marital settlement agreement.
QDRO’s are complicated, and use language that is beyond the understanding of many non-lawyers. Before you sign your marital agreement, you should try to acquire some basic information about QDRO forms, and applicable New York and federal (ERISA) law.
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What is the Difference Between Marital versus Nonmarital Property?
New York is an “equitable distribution state”. This means that (with certain limited exeptions) all property acquired during the marriage is “marital property”. Property acquired by one of the spouses prior to the marriage is nonmarital (i.e., separate) property. Generally, the following rules apply which categorizing property into “marital” or “non-marital property”:
• If the asset or debt was acquired after the date you were married, it is presumed to be a marital asset or debt.
• A non-marital asset or debt is one that was acquired before the date of your marriage. It is also a non-marital asset if you acquired it through a gift or inheritance. Income from non-marital property is also considered non-marital property.
• Even if an assets or debt was acquired by your spouse individually, it is considered to be a marital asset or debt, provided that it was acquired during the marriage. This includes rights in pension, profit-sharing, and other retirement plans.
• Real estate that was acquired during the marriage is marital property.
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