New York Marital Settlement Agreement
A New York marital settlement agreement lets divorcing spouses divide marital property equitably, set spousal maintenance, and address custody and child support, then have those terms incorporated into the judgment of divorce. Attorney review available.
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Introduction
Unlike most states, New York sets spousal support by a statutory maintenance guideline formula, and a marital settlement agreement is the written contract divorcing spouses use to settle that support along with their property, debts, and (by reference) custody and child support, so the terms can be incorporated into the judgment that ends the marriage. In New York this is often called an opting-out or separation agreement: N.Y. Dom. Rel. Law 236(B)(3) lets spouses contract out of the default rules through a written agreement that is signed and acknowledged like a deed. New York is an equitable distribution state, so absent your agreement a court divides marital property equitably, meaning fairly but not necessarily equally, considering the circumstances of each party (N.Y. Dom. Rel. Law 236(B)(5)(c)); separate property stays with the spouse who owns it. Unlike most states, New York has a statutory maintenance guideline formula (N.Y. Dom. Rel. Law 236(B)(6)) that sets a presumptive amount from the payor and payee incomes up to a statutory income cap adjusted for inflation every two years (for 2024 and 2025 that cap was $228,000); above the cap the court weighs statutory factors. Custody and child support follow the Child Support Standards Act (N.Y. Dom. Rel. Law 240(1-b)), stay subject to court approval, and remain modifiable, so an agreement cannot bargain them away. Once signed and acknowledged, your agreement can be incorporated into the judgment of divorce. DocDraft builds your New York marital settlement agreement from your facts, with attorney review available before you sign.
Key Things to Know
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New York calls it an opting-out or separation agreement, and a New York marital settlement agreement is the written contract divorcing spouses use to settle property and debt division, spousal support, and by reference custody and child support, so those terms can be incorporated into the judgment that ends the marriage.
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New York is an equitable distribution state. Marital property is distributed equitably between the parties, meaning fairly but not necessarily equally, considering the circumstances of the case and of the respective parties (N.Y. Dom. Rel. Law 236(B)(5)(c)). Separate property stays with the spouse who owns it.
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New York lets spouses contract out of the default property and maintenance rules through a written agreement, often called an opting-out or separation agreement (N.Y. Dom. Rel. Law 236(B)(3)). A New York marital settlement agreement is where you set those terms yourselves instead of leaving them to the court.
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Unlike most states, New York has a statutory maintenance guideline formula (N.Y. Dom. Rel. Law 236(B)(6)). It sets a presumptive maintenance amount from the payor and payee incomes up to a statutory income cap that is adjusted for inflation every two years; for 2024 and 2025 that cap was $228,000. The formula runs two calculations and uses the lower result.
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For income above the maintenance cap, the court decides any additional maintenance by weighing statutory factors, and it may adjust the guideline result if applying the formula would be unjust or inappropriate. New York also publishes an advisory schedule tying the duration of maintenance to the length of the marriage.
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Child support follows the New York Child Support Standards Act (N.Y. Dom. Rel. Law 240(1-b)). Parties may agree on support, but the agreement must state that they were advised of the guideline, recite the presumptive guideline amount, and give the reason for any deviation. Custody and child support stay court-approved and modifiable and cannot be bargained away.
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A New York marital settlement agreement must be in writing, signed by both spouses, and acknowledged before a notary in the manner required to record a deed (N.Y. Dom. Rel. Law 236(B)(3)). Once signed and acknowledged, it can be incorporated into the judgment of divorce, and the parties can specify whether it merges into the judgment or survives as an independent contract.
Key decisions before you file
Before you file a Marital Settlement Agreement in New York, a few decisions shape the document: which option to choose and what each one means. The Marital Settlement Agreement guide walks through them.
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New York Requirements for Marital Settlement Agreement
New York is an equitable distribution state. Marital property is distributed equitably between the parties, meaning fairly but not necessarily equally, considering the circumstances of the case and of the parties (N.Y. Dom. Rel. Law 236(B)(5)(c)). Separate property stays with the spouse who owns it.
New York lets spouses contract out of the default property and maintenance rules through a written agreement, often called an opting-out or separation agreement (N.Y. Dom. Rel. Law 236(B)(3)). A New York marital settlement agreement uses that authority so the parties can set the division themselves.
Unlike most states, New York has a statutory maintenance guideline formula (N.Y. Dom. Rel. Law 236(B)(6)). It sets a presumptive amount from the payor and payee incomes, runs two calculations, and uses the lower result.
The maintenance guideline applies to the payor income up to a statutory income cap that is adjusted for inflation every two years. For 2024 and 2025 that cap was 228,000 dollars. Above the cap the court weighs statutory factors.
The maintenance guideline result is presumptive. A court may adjust it by weighing statutory factors if applying the formula would be unjust or inappropriate, and New York publishes an advisory schedule tying the duration of maintenance to the length of the marriage.
Child support follows the New York Child Support Standards Act (N.Y. Dom. Rel. Law 240(1-b)). An agreement must state that the parties were advised of the guideline, recite the presumptive guideline amount, and give the reason for any deviation.
Custody and child support terms in a New York marital settlement agreement remain subject to court approval and can be modified later in the best interests of the children. These terms cannot be bargained away.
A New York marital settlement agreement must be in writing, signed by both spouses, and acknowledged before a notary in the manner required to record a deed (N.Y. Dom. Rel. Law 236(B)(3)). Once signed and acknowledged, it can be incorporated into the judgment of divorce.
Frequently Asked Questions
A marital settlement agreement in New York is the written contract divorcing spouses use to settle property and debt division, spousal maintenance, and by reference custody and child support. New York often calls it an opting-out or separation agreement because N.Y. Dom. Rel. Law 236(B)(3) lets spouses contract out of the default rules. It records what you have agreed so the terms can be incorporated into the judgment that ends the marriage.
A New York marital settlement agreement is the private contract the spouses negotiate, sign, and have acknowledged before a notary; the judgment of divorce is the court order that ends the marriage. The two are connected: once signed, the agreement can be incorporated into the judgment, and the parties can specify whether it merges into the judgment or survives as an independent contract. The agreement states the deal, and the judgment gives it the force of a court order. A court must still review and approve the judgment.
New York is an equitable distribution state. Absent an agreement, a court divides marital property equitably, meaning fairly but not necessarily equally, considering the circumstances of the case and of the respective parties (N.Y. Dom. Rel. Law 236(B)(5)(c)); separate property stays with the spouse who owns it. A New York marital settlement agreement lets you set the division yourselves under N.Y. Dom. Rel. Law 236(B)(3), for example one spouse keeping the home while the other keeps retirement funds of similar value, instead of leaving it to the court.
Unlike most states, New York has a statutory maintenance guideline formula (N.Y. Dom. Rel. Law 236(B)(6)). It applies to the payor and payee incomes up to a statutory income cap that is adjusted for inflation every two years; for 2024 and 2025 that cap was $228,000. The formula runs two calculations and uses the lower result as the presumptive amount. Above the cap, or where the guideline would be unjust or inappropriate, the court weighs statutory factors. In your New York marital settlement agreement you can set maintenance terms you both accept, subject to the court.
You can address custody and child support in a New York marital settlement agreement, but you cannot bargain them away. Child support follows the New York Child Support Standards Act (N.Y. Dom. Rel. Law 240(1-b)). If you agree on an amount, the agreement must state that you were advised of the guideline, recite the presumptive guideline amount, and give the reason for any deviation. Custody and child support remain subject to court approval and can be modified later in the best interests of the children.
Yes. To be valid and enforceable in a New York matrimonial action, the agreement must be in writing, signed by both spouses, and acknowledged before a notary in the manner required to entitle a deed to be recorded (N.Y. Dom. Rel. Law 236(B)(3)). This formal acknowledgement requirement is a defining feature of New York opting-out and separation agreements, and skipping it can make the agreement unenforceable, so both signatures should be acknowledged before a notary.
After both spouses sign and acknowledge the New York marital settlement agreement, it can be incorporated into the judgment of divorce. The parties specify whether the agreement merges into the judgment, so its terms become court orders, or survives as an independent contract that is enforced separately. Property division, maintenance, custody, and child support can each be addressed as set forth in the agreement. Incorporation is what turns your private agreement into enforceable terms, though the court must still review and approve the judgment before it is entered.
The New York maintenance guideline formula (N.Y. Dom. Rel. Law 236(B)(6)) sets a presumptive amount, but spouses can agree to different maintenance terms in a New York marital settlement agreement as long as the agreement is fair and properly signed and acknowledged. The guideline is the benchmark the court starts from, and it can adjust the result if the outcome would be unjust or inappropriate. For child support, however, an agreement must recite the guideline amount and the reason for any deviation, and the court still reviews it.