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Scheriff v Scheriff

NY Slip Op 05760

July 19, 2017

Decision

The defendant appealed two supreme court orders from 7/31/15. One order denied the defendant’s motion which requested a set off against the plaintiff’s share of their home equal to the unpaid amount of her share of the plaintiff’s pension. The second order granted the plaintiff’s motion to compel the defendant to list their home for sale.

Ordered: The appeal from the first order is affirmed.

Ordered: The appeal from the second order is affirmed.

Ordered: The bill of costs is awarded to the defendant.

The plaintiff and defendant have three children and were married in 1987. The plaintiff started the divorce action in 2007. They entered into a written stipulation which was incorporated into the divorce on 10/10. The stipulation stated that the defendant was entitled to 50% of the plaintiff’s pension in the fire department. The parties agreed to cooperate in getting a Qualified Domestic Relations Order (QDRO) to divide the pension. The defendant’s portion would be apportioned pursuant to the guidelines set forth in Majausksas v Majauskas (61 NY2d 481). The agreed to share in the cost.

In May, the defendant moved for a set off against the plaintiff’s portion of his share of the marital home in an amount equal to QDRO expense. The supreme court denied. The defendant appeals.

A stipulation that is incorporated but not merged into a judgment for divorce is subject to contract principles, and the terms are binding (Frances v Frances 140 AD3d 1114, Rosner v Rosner 143 AD3d 882, Kraus v Kraus 131 AD3d 94). Where an agreement is clear, the intent of the parties must be gathered from “the four corners of the document” not outside evidence. When the stipulation states that the distribution of pension benefits be done by a QDRO can only convey rights that were stipulated as part of the judgment (McCoy v Feinman 99NY2d 295).

The clear language in the stipulation shows that the defendant is due her equitable share of the pension. The payment of her share is to be through the QDRO. The stipulation didn’t mention who would submit the QDRO. Though it is generally the party looking for approval of the QDRO (Kraus v Kraus 131 AD3d 101). In this case, the defendant should have prepared the QDRO and provided a copy to their employer. Contrary to what was asserted by the defendant, there was no QDRO in arrears. The court did not err in denying the motion that was to set off the plaintiff’s equitable share of the home.

The court said that the brief offered by the defendant doesn’t provide any new argument regarding her appeal, and it doesn’t request any reversal of that order.

A marital settlement agreement, also called a Stipulation of Settlement is a contract that a soon to be ex-husband and wife enter into to distribute the marital property.

Many people think that they don’t need a settlement agreement because they don’t own any property, but this isn’t always the case. The types of assets that are included in a martial settlement can include:

  • Real property
  • Personal property (jewelry, art, furnishings, cars)
  • Investment accounts
  • Joint bank accounts
  • Retirement accounts
  • Liabilities (car loans, credit card debt, etc.)

This agreement allows the parties to retain control over their property rather than the court getting involved. Often what starts out as an equitable distribution turns out not to be all that equitable. Keep in mind that equitable means “fair,” not necessarily 50/50. The court is given broad discretion in determining what happens with your property.

These agreements can take a great deal of stress off both parties. With this agreement in place, court appearances and misunderstandings can be kept to a minimum.  A well-drafted agreement shows the court that you have carefully considered all of the issues. This makes for a faster, smoother divorce which in the end is less expensive. Regardless, your agreement cannot put limitations on child support or visitation, which is always before the court according to the best interests of the child.

If you are going through a divorce, it is important to ensure your legal rights are protected. Contact Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.

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