What is the Difference Between an Agreement and an Order in NY Courts?
Divorce and family law cases In New York may be resolved through court orders or stipulations. Today’s blog post discusses the differences in each method and how they affect a litigant's future rights to appeal, modify or enforce the terms of settling child custody, child support and equitable distribution.
What is a Stipulation?
A Stipulation is an agreement made by the parties, which settles issues of a legal matter. Stipulations may be entered prior to appearing before a Judge (or jurist), or during the pendency of a legal action. The stipulation may resolve only one aspect of the case or the entire case. This is known as a global stipulation or settlement agreement. When a Stipulation is signed by the parties it becomes a binding contract.
What Does it Mean to Be So-Ordered?
The Judge (or jurist) in a New York divorce of family court matter may turn a Stipulation into a court order by affixing his or her signature to the document and having it entered with the clerk’s office. While it may seem simply enough, it carries some liabilities for the Judge (or jurist) and for this reason, not every Judge (or Jurist) will comply with the request.
Because the process of settling documents in the New York Supreme Court does not exist or apply to the New York Family Courts, it is much more common that the Judge (or jurist) will enter an “Order on Consent”, which refers to and adopts the terms of the parties’ Stipulation, so that litigants can seek to enforce or even modify the terms of the Stipulation.
What is an Order?
Aside from the so-ordered Stipulations or Orders on Consent discussed above, most orders in the New York court system refer to the decision of the court after a motion, hearing or trial. Throughout the course of litigation, one party or another may file a motion, which is a written request for a Judge (or jurist) to make a ruling, or decision, on an issue in the case based on the submission of papers. A motion is supported by an affirmation signed by the attorney stating the applicable laws, an affidavit signed by the litigant stating the applicable facts, as well as documentary evidence, attached as exhibits. Motions for summary judgment indicate that the filing party is asking for the entire case to be decided by submitting these papers. After a motion is submitted and served on the other litigant(s), the opposing side(s) will have an opportunity to oppose the motion and then the original filer will have the right to reply to that opposition. Once the motion is fully submitted, the court will issue a decision and order, either ruling on the motion or referring the issue to a hearing or trial.
Without the filing of a motion or reaching an agreement, a matter pending in the New York Supreme or Family Court will eventually lead to a hearing or trial.¹ Hearings and trials are much like they are portrayed in the media. Each side has his or her opportunity to present their case through testimony and evidence. A hearing generally refers to a limited issue, whereas a trial refers to all open issues in the case. Following either a hearing or trial, the Judge (or jurist) issues a written order and decision of the court, which may conclude the legal matter.
What is the Significance of a Stipulation versus an Order?
Appeals
An order after motion, hearing or trial preserves a parties’ right to appeal the decision of the court. This means that if a party does not agree with the decision of the Judge (or jurist) and there is a legitimate basis in law, he or she may ask that a higher court review the decision. When parties come to their own agreement as to the terms of settlement, they are waiving their right to appeal.
Enforcement
When seeking to enforce a court order in a New York Supreme Court or Family Court, a Notice of Entry must be filed, which requires a specific waiting period, and then either litigant may seek to enforce the terms.
Unlike an order, a stipulation is slightly more complicated It’s terms may be enforced through the filing of a plenary action. In order for a stipulation to be enforceable in a Supreme Court divorce matter, it must be incorporated into a Judgment of Divorce or so-ordered by the Judge (or jurist). Following the execution, or signature, of the Stipulation in a divorce action the parties receive a sixty day order requiring them to submit all final documents, including the proposed judgment of divorce. From the time that these documents are submitted, it could take the New York courts anywhere from one month to one year to sign the judgment of divorce and enter it with the county clerk. That means litigants could have a period of two to fourteen months where they cannot bring a post-judgment divorce action to enforce the terms of the agreement and would therefore be forced to file an entirely separate action in order to force a person to comply with the terms of the agreement. One way this issue can be solved is through the Judge (or jurist) so-ordering the Stipulation.
Modifications
The standard for seeking a modification of an order is also different from that of a Stipulation. An order may be modified by a showing that there has been a significant change in circumstances since the entry of the order. However, in order to modify a Stipulation, that change in circumstances must have been unforeseeable at the time that the agreement was made. That’s because the New York Courts expect that parents contemplate these issues and changes prior to entering into an agreement.
So, Why Not Just Let the Courts Make All of the Decisions?
It may seem that Stipulations create potential issues moving forward that can be avoided by simply allowing the New York Courts to make the decisions and enter an order. While that may be true in theory, the steps required to receive a decision and order from the court is significantly more complex. Conducting hearings and trials usually take many days and often requires certified records and expert testimony. This means that litigants generally spend tens of thousands of dollars (if not more) in a short period of time on counsel fees, expert fees and documents. Furthermore, hearings and trials have strict rules regarding what information and evidence can be presented. This means that some of what a litigant seeks to present may not be admissible. Ultimately, allowing a stranger in a black robe to make a decision that will affect the litigants and potentially their children’s lives for the foreseeable future is always a gamble. Litigants and parents are almost always better equipped to make decisions about their own lives than any Judge (or jurist).
Matters will only become active after a Request for Judicial Intervention is filed.