What Is Required For A Document To Be Accepted As A Separation Agreement?

Periodically, I see documents that were prepared by the parties on their own while attempting to resolve whatever legal issues they were facing.  Occasionally, the parties will prepare their own separation agreements.  Unfortunately, in many cases, those self-prepared separation agreements do not meet the statutory requirement applicable to either child support, maintenance, or other significant issues.  A recent example of why such self-prepared agreements are problematic was illustrated in a recent case, Scully v. Haar,  2009 N.Y. Slip. Op. 08261 (4th Dept. 2009).

Plaintiff and defendant were married on May 8, 1993 and have three minor children.  The parties have lived apart since March 2005.  On March 4, 2005, plaintiff commenced an action for divorce.  After extensive and ultimately futile negotiations between the parties, plaintiff filed a complaint on August 11, 2006, that did not specify any misconduct on the part of defendant but requested that plaintiff be awarded custody of the parties’ children.  On September 15, 2006, Supreme Court granted defendant’s motion to dismiss the complaint based on the insufficiency of plaintiff’s allegations but “retained jurisdiction over ancillary issues.”

Thereafter, the parties entered into the agreement, the preamble to which provides that “the parties are now desirous of resolving custody and ancillary issues without a trial.”  The agreement granted sole custody of the parties’ children to defendant and establishes a detailed access schedule for plaintiff.  It further provided that the agreement “shall be submitted to any court in which either [p]arty may seek a judgment or decree of divorce and . . . shall be incorporated in such judgment or decree by reference.”  The agreement was signed by both parties, notarized, and filed with the Erie County Clerk’s Office on May 11, 2007.

On May 13, 2008, just over one year after the agreement was filed, plaintiff commenced this action fo divorce based on Domestic Relations Law §170(6), alleging that the parties had lived separate and apart pursuant to an agreement for a period of a year or more.  A copy of the agreement was attached to the complaint.  Defendant moved to dismiss the complaint on the ground that the agreement was not a “written agreement of separation” within the meaning of section 170(6) because it addressed only parenting issues, it did not expressly recite the parties’ intent to live separate and apart, and it was not intended to serve as a separation agreement.  Plaintiff cross-moved for summary judgment on the complaint, contending that the terms of the agreement clearly established that the parties were living separate and apart.  The trial court denied the relief requested by the plaintiff.

Domestic Relations Law §170(6) sets forth one of the two “no-fault” grounds for divorce in New York State.  Specifically, that section provides that an action for divorce may be maintained on the ground that “[t]he husband and wife have lived separate and apart pursuant to a written agreement of separation . . ., for a period of one or more years after the execution of such agreement”.  The section further provides that the agreement must be signed by the parties and “acknowledged or proved in the form required to entitle a deed to be recorded”. Moreover, the agreement must be filed in the office of the clerk of the county in which either party resides.

The Appellate Division affirmed the lower court’s decision holding that “No-fault divorce applies only where there is a previous decree of separation or a written separation agreement, as required by statute [and, here, t]he parties have neither”.  Plaintiff attempted to rely on a “Parenting Plan Agreement” executed by the parties after an earlier divorce action commenced by plaintiff was dismissed and the court in that action retained jurisdiction over ancillary issues.  The agreement related solely to matters of custody and visitation and, although it was signed and acknowledged by the parties and filed with the County Clerk by plaintiff, it neither purported to be a separation agreement as that term is generally understood, nor made any explicit reference to the parties’ separation.  The Fourth Department concluded, particularly in light of the circumstances in which the agreement was made, that the agreement did not “evidenc[e] the parties’ agreement to live separate and apart, [and] thus [it did not] satisfy[ ] the statutory requirement [with] respect to a separation agreement”.

As I stated previously, it important that the parties understand that New York does not make it easy for someone to prepare and execute a valid separation agreement.  In my opinion, even if someone decides to follow a self-help approach, any document should be reviewed by a family law lawyer to make sure that it fully represents the parties’ intent and complies with applicable law.  While it may be tempting for someone to do it for a variety of reasons, any future disputes involving such documents is likely to require involvement of lawyers.

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