Separation Agreements

Once a couple has reached the conclusion that their relationship should be terminated, one of the first steps taken is the development of a ‘Separation Agreement’ which serves as a binding legal agreement detailing child custody plans, support figures, and a division of responsibility for each member of the couple including bill payments and division of property. This cursory step in the marriage dissolution process allows couples to fully consider all elements associated with dividing their household, family and lives.

Several years ago, New York State allowed for ‘no fault grounds’ divorces. However, all state legislatures have since passed and adopted laws governing the grounds on which a divorce will be granted including: cruel and inhuman treatment; abandonment or desertion for a period of one or more years; confinement in prison for a period of three or more consecutive years after martial vows taken and finally, adultery. Additionally, under New York State law, grounds for a divorce also includes two additional areas adopted as the State’s form of ‘no-fault:’

Husband and wife have lived apart pursuant to a decree or judgment of separation granted by a court for a period of one or more years after the granting of such decree or judgment;
The husband and wife have lived separate and apart pursuant to a written Separation Agreement which must be filed with the office of the county clerk where the parties reside before the requisite one-year separation period begins.

Before New York State allowed “no fault grounds” for divorce, Separation Agreements were widely used when neither party wanted to place blame on the other party for the divorce. After one year of being legally separated, you could then file for divorce, and a divorce would be granted based on the legal separation agreement.

Benefits of a Separation Agreement

Perhaps your marriage is suffering, but you don’t feel that divorce is necessarily the answer right now. Or, perhaps you feel a divorce is imminent and wish to protect your children and establish custody and support well before an official divorce proceeding begins.

A Separation Agreement is a legally-binding contract between you and your spouse in which the following in outlined: Both individuals live separate and apart (as simply living apart does not constitute being legally separated); who is responsible for paying what bills; whom the children will visit and/or live with, if child support will be paid, what visitation arrangements will be and what happens to the marital property—as well as any other stipulations the couple wishes to include.

To be legally binding, a Separation Agreement must be signed by both parties and signatures acknowledged in the presence of a notary public, although both parties do not have to appear before the notary at the same time, or even use the same notary. Once notarized, the Agreement becomes legally binding and enforceable, meaning that if one spouse fails to comply with what is outlined in the Agreement, it can be enforced by a court judge.

It is also suggested that once drawn up, signed and notarized, the Separation Agreement be filed with your county clerk’s office. This will prevent the original from being lost or destroyed, and neither party will be able to make any unauthorized changes to the agreement. Also worth noting, if one spouse passes away without a legal separation agreement in place, the other spouse has every right to make claims against the deceased party’s estate, regardless of how long the parties have been informally separated.

Once a Separation Agreement has been legal for a year, if you choose, you may file for divorce based on your Separation Agreement. The Agreement will be filed along with the divorce petition and a judgment of divorce can be granted using the terms of the Separation Agreement.

It is generally advised that both parties seek legal representation when drawing up a Separation Agreement as a poorly worded Agreement can have serious, unexpected consequences for the parties involved, particularly in complicated or complex divorce cases. It is therefore recommended that an experienced family law attorney is consulted in the creation of the document. With more than 100 years of combined experience, the seasoned attorneys at Marnell Law Group, PC., can assist in drafting a separation agreement that protects your best interests, as well as the best interests of family.

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Russell I. Marnell, P.C.

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