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Brooklyn Family Law, Blog

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October 20, 2014
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Separation Agreements, Divorce or Both?

Separation Agreements, DivorceThe most important thing to know about Separation Agreements is that they are agreements. If both parties are not willing to negotiate and reach an agreement, a Separation Agreement cannot and will not happen. That said, if both people are willing to sit down and negotiate a fair and reasonable Separation Agreement, including all of the legal requirements, this can be a positive direction to take.

Separation Agreements include provisions concerning Estate distributions and entitlements, living requirements, distribution of all marital and separate assets, maintenance, child support and custody provisions. This is a contract that you and your spouse negotiate and you can put any provisions you want into the Separation Agreement. If the provisions are not seen as fair and reasonable when written, though, a Court could strike down provisions of the Separation Agreement. This is why it is best to have them drafted by attorneys familiar with Separation Agreements, to be as certain as possible that a Court will accept and enforce the Separation Agreement if ever challenged or breached.

A standard Separation Agreement includes provisions for everything that a Court would consider in a divorce action but for the divorce. In a divorce, division of all assets separate and marital is made, child custody is determined, child visitation is determined, child support is determined by formula (can vary in your Separation Agreement but must give legitimate reasons), maintenance (alimony) is determined and the length of time it is paid (can vary in Separation Agreement but must give legitimate reasons), insurance policies protecting children and/or spouse will be determined. A Separation Agreement includes all of these provisions as well as what is set forth above and anything else you want to include.

Some standard language in a Separation Agreement allows you to live separate and apart, in fact, requires it, free from the intrusion or interference of the other party, as if you are not married. This protects you from future claims of abandonment or adultery, among other things.

Bottomline is that a Separation Agreement does everything a divorce does in terms of your financial status and living situation, but it leaves you married and generally without rights to any claim in your spouse’s Estate. This means that if your spouse dies the day after you sign an agreement, you cannot make any spousal claim to their Estate. You are cut out the moment you sign. Remember this in your negotiating the Separation Agreement. One of the many benefits of a Separation Agreement is that you and your spouse can remain on each other’s insurance because you are still married. Upon a divorce, you cannot be on the same policy as you are no longer related/family.

Though a Separation Agreement is viewed as a cheaper sibling to divorce, it must be viewed with the same seriousness. Distribution of assets in a Separation Agreement need the same level of investigation they do in a divorce. In order to assure all assets are divulged, there are steps that must be taken, for example, both parties preparing Matrimonial Net Worth Statements that are made part of the Separation Agreements and relied upon for entering into the Separation Agreement. There is often language as to the Separation Agreement not including any assets that are not divulged and such assets will remain subject to equitable distribution, or language of that nature. The thinking is that if someone would hide assets in a divorce action, they would be equally inclined to hide them in the division of assets in a Separation Agreement.

The other benefit of a fair and reasonable Separation Agreement that is drafted in a fashion that will be acceptable to the Court is that it can be used as the “settlement” in a divorce action, so the divorce becomes a much simpler and less traumatic process. There are two ways for this to happen. One way is what is called a “conversion divorce.” There is a cause of action for divorce based upon compliance with the terms of a Separation Agreement for a year or more. In other words, you sue for divorce based upon your compliance with the Separation Agreement and ask that the Separation Agreement be Ordered as the terms of your divorce. For this, you need to wait a year after the Separation Agreement is executed before you can sue for divorce.

The other way to divorce based upon the Separation Agreement is under the “no-fault” divorce provision that requires that the marriage is “irretrievably broken for a period of six months or more.” This six months does not run from the time the Separation Agreement was signed, but rather from the time the marriage became irretrievably broken. That could have been a year before the Separation Agreement was signed, so you can commence your divorce action the day the Separation Agreement is signed or when the six months expires. With this, the method is the same as is set forth in the above paragraph.

There is a third method not used as frequently now that New York has a “no-fault” provision. If you cannot swear your marriage is irretrievably broken for six months or more, and you do not want to wait the year to do a conversion divorce, you can still sue for divorce based on one of the other grounds using the Separation Agreement in the same way you would in the two other methods. Because everything is already settled, there is little incentive for the other party to contest the divorce, though it can happen. For this, though, you really need grounds for divorce that will hold up before the Court. This method would be considered only if neither of the above was immediately available and there is some urgency in getting immediate divorce. If the other side contests for some reason, then you will not get that immediate divorce.

If you and your spouse are able to reach the terms necessary for a properly formed, fair and reasonable Separation Agreement, it is certainly an avenue that you need to explore. Always remember that entry into a Separation Agreement must be free of undue influence, any type of fraud or deceit and both parties must understand exactly what they are signing. You may want to take a look at the article on prenuptial agreements as the same rules and standards for execution of a prenup will apply to execution of a Separation Agreement.

Contcat Renata Weissman Brooklyn's Family Law Practice attorney for prompt assistance in Divorce or Separation advice and legal help. The New York Law firm can be reached Toll Free at 855-736-2829.