Enforcing Agreements Regarding the Payments of College Expenses in New York

The New York courts have been reluctant to enforce agreements to agree regarding the payments of college expenses. In Matter of Wood v. Wood, 105 AD3d 637, 963 N.Y.S.2d 649 (1st Dept 2013), the parties never reached an agreement on how the child's college education expenses would be paid. The agreement did not require any set amount to be paid by either parent and the court held the plain language of the college education provision in the stipulation of settlement constituted nothing more than "an unenforceable agreement to agree." Id at 638. Other New York courts have frowned on enforcing "by mutual agreement" clauses in separation agreements, holding that within the context of matrimonial proceedings, these provisions cannot be viewed as having any more force than an agreement to agree. Guevara v. Guevara, 262 AD2d 251, 692 N.Y.S.2d 367 (1st Dept 1999). To be enforceable, an agreement must contain all of the material terms and evince a clear mutual accord between the parties. Cohen v. Cohen, 120 AD3d 1060, 993 N.Y.S.2d 6 (1st Dept 2014)(on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree). It is well settled that "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." Bernstein v. Felske, 143 AD2d 863, 533 N.Y.S.2d 538 (2d Dept. 1988).