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“Parenting Plan” Not A Substitute For A Separation Agreement

The State of New York has a very narrowly defined requirements regarding what needs to be in a separation agreement and how it is executed.

In late 2009 the Appellate Division for the Fourth Department (an upstate appeals court) held that a separated couple’s agreement which dealt with terms of custody and visitation for their three children did not satisfy the minium statutory requirements to constitute a Separation Agreement in New York. Therefore the parties living separate apart under the terms of this agreement for a period of one year could not use this as a basis for obtaining a divorce.

The court held that “it is a physical separation of the parties, not the written agreement, that supplies the grounds for divorce under the New York Domestic Relations Law section 170(6).”

Donald J. Scully and Carol M. Harr married in May of 1993. They separated in December of 2005. The couple executed a “parenting plan agreement” on May 11, 2007.

On May 13, 2008, one year and two days after they entered into this parenting plan agreement, Mr. Scully filed for divorce. Ms. Harr contested the matter. Her position was that the parenting agreement did not constitute a separation agreement under New York law. The Fourth Department of the Appellate Division agreed with her. They held that the agreement dealt solely with matters of custody and visitation, and even though it was signed and acknowledged by the parties, it did not constitute a separation agreement in conformity with New York State Law.

Separation agreements are complicated detailed documents. Should you and your spouse seek to enter into a separation agreement, feel free to contact the divorce lawyers at the Law Offices of Schlissel DeCorpo to discuss this matter at 1-800-344-6431, by email or on facebook.

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