Matrimonial agreements are simply contracts between spouses or ex spouses.
These agreements include the following:
- Prenuptial agreements
- Post nuptial agreements
- Separation agreements
- Stipulations of settlement
- Modifications to any prior agreement
Certain issues require mandatory language that cannot be waived for it to be enforceable. These include:
- Any agreement involving child support
- Any agreement involving spousal support
When other issues are settled, the language of the agreement is critical to define each person's rights. Any omission on the following issue can be viewed as a waiver
- Equitable distribution
- Pension rights as it flows from equitable distribution
- Rights to 401(k), IRA or other tax deferred accounts as they flow from equitable distribution
Putting these all together means that basic contract drafting is the starting point. From there, the mandatory language required by DRL 236 B (3) is required, as well as the mandatory language for both child support and spousal maintenance. The inclusion of this language is only the starting point to insure it is enforceable.
From there, making sure that all aspects of equitable distribution are spelled out clearly, as equitable distribution cannot be raised after judgment without vacating the entire judgment.
Good practice in drafting an agreement involves showing the work how numbers are arrived at whenever possible. The reason is if there is a mistake in the agreement that nobody catches and the parties cannot resolve them, the work allows the court to revise the agreement if an action to reform the agreement is commenced.