What Is A Stipulation Of Settlement?
A Stipulation of Settlement is a document filed with the NY court that includes all the elements of the divorce agreement.
All the terms of the divorce must be contained within a Stipulation of Settlement. For this document to be a viable agreement (and therefore able to be upheld in court), it must be written in a specific way and include specific language.
In fact, some sections of New York law go into the Stipulation of Settlement verbatim, and issues must be covered within the “four corners of the document” if they are to be considered part of your divorce agreement.
While a Stipulation of Settlement is necessary to file for divorce, it is not sufficient—New York requires many additional forms and papers in addition to the Stipulation of Settlement.
What Specifically Does A Stipulation Of Settlement Include And How Does Mediation Improve The Drafting Of This Document?
Here are just a few of of the topics that must be covered within the Stipulation:
- Real Property Division
- Division of retirement assets, including pensions
- Division of marital debt
- Spousal support/spousal maintenance (amount, term and termination events)
- Child custody
- Child support – including the law and calculations relied upon and any reasons for deviating from same
- College costs
- Parenting schedules
- Special arrangements, including extraordinary expenses for children and unique parenting plans, such as nesting
Two of the most important elements of a divorce covered in a Stipulation of Settlement are child custody and visitation schedules. In a thoroughly and properly drafted agreement, details are set forth so that both parties have the opportunity to clarify and fully acknowledge the choices they are making. It is helpful to be able to refer to a comprehensive agreement when unanticipated concerns later arise. For example, based on the totality of the terms of an agreement, a Husband may have waived his rights to the Wife’s pension, an equitable share of which he would have been entitled, equal to $100,000. If the agreement fails to explain why this was waived, or fails to reference the offsets set forth elsewhere in the agreement, the agreement could raise issues. In this example, rather than receiving a portion of the Wife’s pension, the Husband paid a shorter term of alimony, the adjusted value of which would have been $101,000.
It is not uncommon for people to revisit what they decided and how they arrived at their decisions. A Stipulation of Settlement agreement that outlines all the aspects of the decision supports equanimity long after the divorce is concluded. A well drafted Stipulation, resulting from a mediation process that enables participants to try out different combinations and resolutions and choose which are most agreeable and fair, is invaluable.
In mediation, we spend time examining each of the items that go into the agreement while continuously reviewing the totality of the agreement. There are a lot of moving parts and we usually have several things tentatively decided, all interdependent on other decisions, before we set the whole agreement in place.
Details important to you and your spouse are memorialized in the agreement. Issues that required a fine point to negotiate are preserved within the agreement so later conflicts are averted.
Equitable Distribution and Stipulation of Settlement
Both New York and New Jersey are equitable distribution states. Equitable distribution is dividing assets and debt fairly. In mediation, we look at the needs of both parties and come up with fair terms to which both you and your spouse can agree.
When you and your spouse agree on how to divide your assets, those agreements go into the Stipulation of Settlement document. In New York, equitable distribution is a little different than in New Jersey—for instance, a higher degree acquired during marriage is considered an asset and the increased earning it affords the degree holder is considered a marital asset subject to equitable distribution.
Do I Have To Follow The New York Guidelines For Stipulation Of Settlement Explicitly?
The short answer is no.
Some portions of your Stipulation of Settlement, like the section on child support, is governed by state guidelines.
When you negotiate your child support obligations with your spouse during mediation, you’re able to deviate from the guidelines, and the court will respect the terms arrived at by you and your spouse. However, you must explain within the Stipulation of Settlement why you have deviated from the calculations.
Be warned, these guidelines are quite involved and can be difficult to understand. You may want to ask your mediator to explain them to you in detail.
Your Stipulation of Settlement will become a binding agreement when the judge signs your Judgement of Divorce and incorporates, by reference, your Stipulation. Should changes in circumstances later necessitate revisions to the Stipulation, an amendment can be negotiated and drafted through mediation. The modification will be executed and notarized with the same formality as the original agreement and filed with the court.