What are the contents of an agreement from a divorce mediation or a collaborative divorce settlement in New York?
Unfortunately, the reality of divorce is that not all of them end amicably. If there are custody or asset and property issues that are involved in the dissolution of marriage, the divorce process can be both contentious and prolonged.
A mediator can be appointed by the court in cases of divorce where couples are in conflict and cannot resolve the issues between them, which prevents final agreements being made. A third party mediator is not necessarily an attorney though they can be, and a mediator who is not an attorney does not replace an attorney. Mediators are called into divorce situations as neutral and balancing entities who work with both parties to come to a mutual agreement on their conflicting issues.
A Divorce Mediation Settlement is a legally binding document which contains all of the agreements made between the divorcing parties. It can also be referred to as a Collaborative Divorce Settlement, a Marital Settlement Agreement, Property Settlement Agreement, Divorce Settlement Agreement or a Mediated Separation Agreement.
This document is legal and binding and the agreement contains the final terms between separating or divorcing parties. If one party does not agree to the terms of separation or divorce contained in the document, they simply don’t sign it. This is a document that neither party is forced into accepting if they don’t agree to the entire contents of the agreement.
Once all of the issues of the separation or divorce have been agreed upon, the mediator will draft the document for both of the parties or their attorneys. Both the language and appearance of these documents are as varied as the terms which are contained there, and only an attorney can advise on the various nuances or differences in particular agreements.
Though the Divorce mediation Agreement or Collaborative Settlement Agreement will be unique to the parties involved, all agreements contain common elements. Certain commonalities include such things as date and location of marriage, list of children in the marriage, whether the marriage ceremony was religious or civil, the outlining of the laws used in the case which have determined the particular aspects of the separation or divorce, and other language of that nature.
Equitable distribution of assets and property of the marriage will always be listed and the laws pertaining to those elements. Whether the marriage has children or not and even if the marriage did not have substantial assets or property to distribute, the equitable distribution element specifics under New York Domestic Relations Law Section 236(B)(5)(d) will always be listed.
Another common element in settlement agreements is the mention that both parties have considered the Domestic Relations Law Section 236(B)(7) and Domestic Relations Law Section 240(1-b) which pertain to spousal maintenance and child support and custody respectively.
The mediators or any other party to the mediation process are also commonly listed in the contents of the document and one of the most important elements in the document are the stipulations in the event one of the party defaults on the agreement.
The most carefully drafted elements of an agreement are those concerning custody of children and the maintenance of these children. Even in the event of an amicable divorce and mutually agreed upon terms, the court must be satisfied with the language of the child custody terms and satisfied that the guidelines under the law are met regarding custody and support.
Although a settlement agreement can release the parties from any future debt incurred by the other spouse after the divorce, any debt the two parties accrued together during the marriage is still considered joint debt, and lenders may still pursue both parties for that debt, however, the responsibility of repayment of debt can be agreed upon by the parties and listed in the agreement.
Agreements between separating or divorcing spouses, whether through mutual agreement or mediation process, can be enforced through the courts. It is not rare that one of the parties may violate one or more of the agreements they have agreed to and signed. If one of the parties fails to comply with one of the agreements, an enforcement motion with the court can be filed. This motion seeks assistance from the law in persuading the non-compliant party to return to the compliance of the agreement.
There are provisions in New York State which allow for revision of agreement documents just as there are stipulations to follow the agreements. If both parties agree that there needs to be changes regarding debt, assets or any other financial matter, they can file a Modification Agreement which lists their new changes. This must be a mutually agreed upon change and the new changes are binding on the date they are signed.
If there are changes in custody and support or alimony, those issues can also be modified by the Modification Agreement. Be advised that the court will scrutinize the changes carefully, just as they did the initial agreements, to ensure the continued best interests of the child.
It is important to also note that both parties can choose not to follow the agreement. Perhaps the parties have just become complacent or they have even begun dating again. No one will be fined or imprisoned, however, for whatever reason a spouse decides to do so, they can enforce the agreement upon the other party.
This means that even if you think you are on friendly terms with your ex-spouse, and you have missed a debt payment or have not returned a child from visitation one weekend on the time stipulated in the agreement, the other party can file a motion against you for non-compliance with the agreement terms. It is always best to closely follow the terms that have been agreed upon.
It is always wise to seek the advice of an attorney if your spouse refuses to comply with a Divorce Mediation or Collaborative Settlement Agreement. An attorney who is familiar with both your case and the documents involved is the best defense against non-compliance of your legally binding agreement.