(dissenting). We respectfully dissent. After the commencement of the jury trial in this matrimonial action, the parties, with the aid of the court, negotiated an agreement to fully dispose of the action by their obtaining uncontested dual divorces and dividing the personal and real property. In open court, they then spread upon the record a stipulation of settlement embodying the terms of their agreement. The trial court reviewed the proposed settlement and, after expressly reciting that it had considered all of the statutory factors for equitable distribution (Domestic Relations Law, § 236, part B, subd 5, par d), found the stipulation to be fair and reasonable.
Under nearly a century-long tradition, such a stipulation, particularly once embodied in a final judgment, would be accorded the highest degree of impregnability.. In 1885, the Court of Appeals held that “[pjarties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce * * * and all such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced” (Matter of New York, Lackawanna & Western R. R. Co., 98 NY 447, 453). More recently, this court has held that “[s]tipulations of settlement, which do much to alleviate overburdened court calendars, are favored by the courts and will not be set aside absent a showing of such good cause as would invalidate a contract” (Myers v Bernard, 38 AD2d 619). The majority holds that the judgment herein is invalid because the stipulation upon which it was *115based did not comply with the formal requisites for an “opting out” agreement (Domestic Relations Law, § 236, part B, subd 3) and because the judgment failed expressly to include consideration of the statutory factors for equitable distribution (Domestic Relations Law, § 236, part B, subd 5, par g). Thus, under the majority’s holding, in the not untypical situation where parties to a matrimonial action arrive at a settlement on the eve of or during trial, they will not be able to use the simple, expeditious mechanism of a stipulation on the record to conclude the financial aspects of their dispute. Instead, such parties are to be relegated to two alternative means for disposing of their lawsuit without trial, namely, (1) adjourning the proceedings for the drafting and execution of an “opting out” agreement, or (2) since obviously the court cannot make findings without evidence, engaging in a formal hearing for the taking of proof pertinent to the statutory factors. Moreover, the majority’s decision effectively eliminates the use of stipulations as to all of the financial aspects of divorce litigation, since findings considering the statutory factors are required and are not waivable for not only the equitable distribution of property, but also for maintenance and child support determinations (Domestic Relations Law, § 236, part B, subds 5, 6, 7).
Both of the foregoing alternatives to the customary stipulation of settlement are, in our view, not only totally unnecessary to protect the rights of the parties, but have the potential for delaying and mischievously interfering with the settlement process. Certainly a settlement stipulation, entered on the record in open court with the parties present with their attorneys, has at least the formality and solemnity equivalent to the statutory requirements for an effective “opting out” agreement. The second alternative, a court hearing with findings on the statutory factors, would either become a meaningless, expensive and time-consuming formality, or would invite the court to upset the parties’ stipulation and impose its own financial determination based upon its independent consideration of the statutory factors and the evidence presented.
Given that contested matrimonial actions represent the second most prevalent category of civil litigation in the *116Supreme Court (see Third Ann Report of Chief Administrator of Courts, 1981, table 29, p 48) and that personal hardship and bitterness are uniquely inherent in fully contested divorce trials, we should not impose needless additional barriers to the efforts of the litigants, their attorneys and the trial courts to arrive at mutually agreeable settlements of such actions unless there is a clear expression of a contrary legislative intent. We find no such expression of intent in the language of part B of section 236 that the court’s “decision” (itself unnecessary if the parties have entered into a stipulation) must set forth its consideration of the statutory factors and that such requirement is unwaivable. The purpose of this requirement has been identified by distinguished commentators as “a check on unfettered discretion, and [it] also provides a basis for an appeal where it is believed that there was an abuse of discretion” (2 Foster and Freed, Law and the Family, § 33:8-A [1983 Cum Supp], p 870; see, also, Scheinkman, 1981 Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law, C236B:17 [1982-1983 Pocket Part], p 138). Obviously, these objectives have no relevancy whatsoever in the case of a stipulation of settlement where the parties themselves have determined what is equitable for division of their property and for maintenance and child support. Nor is there any express statutory provision prohibiting the parties from disposing of all financial issues in a matrimonial action by stipulation, as there is in the provision prohibiting the entry of judgment dissolving the marriage by consent, except upon submission of formal proof (Domestic Relations Law, § 211). Indeed, the absence of any provision in part B of section 236 corresponding to section 211 is itself strongly suggestive that the Legislature did not have stipulations of settlement in mind when it enacted the nonwaivable requirements for the form of a decision under the new Equitable Distribution Law. For these reasons, we would affirm the judgment rendered pursuant to the parties’ stipulation.
Even were we to agree with the majority that the judgment was invalid because of the noncompliance of the court’s decision with the formal requisites of part B of section 236, we would vote to reverse that judgment in its *117entirety, rather than merely the portion thereof dealing with the division of marital property. If the parties are to be relieved of their stipulation, they should be restored completely to their status quo ante (see Barcia v Barcia, 283 App Div 726; Bond v Bond, 260 App Div 781).
Sweeney and Kane, JJ., concur with Casey, J.; Mahoney, P. J., and Levine, J., dissent and vote to reverse in an opinion by Levine, J.
Judgment modified, on the law, by reversing so much thereof as ordered that all questions concerning maintenance payments, equitable distribution of marital property, distributive award, finances, personal and real property, and other marital matters be governed by the agreement stipulated to in open court, matter remitted for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs.