Marital Settlement Agreements

If you and your spouse decide to get divorced, and you can agree on issues such as property rights, spousal and child support obligations, and custody and visitation arrangements, then you may want to enter into a marital settlement agreement.  Sometimes this agreement is called a stipulation of settlement.  The marital settlement agreement will later be filed with the court and become part of your divorce judgment, also known as a divorce decree.

A marital settlement agreement can take much of the stress out of ending your marriage, which can be a very stressful situation. By agreeing on all the terms in advance, you and your spouse can avoid court appearances and misunderstandings. A well-considered, negotiated and carefully-written marital settlement agreement can show the court that you and your spouse have considered all the issues related to your particular situation. This can, in turn, lead to a faster and less expensive divorce, and avoid a trial which can be very time consuming and costly.

While you may make generous provisions for children in a marital settlement agreement and try to decide custody and visitation issues, you cannot limit or omit your obligation to support your minor children. The issues of child custody, visitation and support are always before the court for consideration and the court is obligated by New York law to determine what is in the best interests of the child.

Marital settlement agreements are valid and enforceable contracts, and once a court issues a judgment of divorce that includes a marital settlement agreement, the matter is usually final, and the divorce may not be challenged. However, there are limited circumstances under which you or your spouse may challenge the validity of a divorce judgment that includes a marital settlement agreement. Generally, the court will not declare a marital settlement agreement invalid when such an agreement has been negotiated and both parties are represented by counsel. Although it is difficult to prove, the reasons you can challenge the marital settlement agreement include:

  • Fraud: When you file for divorce, you and your spouse must file a financial disclosure statement, called a Sworn Statement of Net Worth. If you or your spouse has hidden property or assets, and fail to disclose them, the court may refuse to enforce a marital settlement agreement. Also, if you or your spouse discloses the property or assets, but you are not completely truthful about the nature and amount of the property and assets, the court may refuse to enforce the marital settlement agreement.
  • Mutual mistake: If, at the time you entered into the marital settlement agreement, you and your spouse believed you had signed a document that dealt with all of your assets, but you and your spouse did not know that property and/or assets were missing from the marital settlement agreement, the court may choose not to enforce the agreement. However, you both can correct the mistake by signing an amendment to the marital settlement agreement and having the amendment notarized.

Legal Editor: Pasquale J. Crispo, January 2015 (updated February 2016)

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

Back to top

Our Lawyers

Our lawyers are screened and approved – they have all gone through an application and interview process. Each lawyer we recommend has been screened for significant experience, knowledge of ethics codes and rules, and law office practices, including customer service skills and handling of fees and billing.

Learn More

About Us

When you call us, you will be speaking with an attorney. One of our attorney referral counselors takes your call and talks with you about your legal question, or reviews your online referral request. There is no charge to speak with one of our attorney referral counselors — we’re here to help.

Learn More