When a couple decides to divorce, there are many factors to consider. Among the most important are child custody arrangements, alimony, division of property, and child support. Because it’s often difficult for couples to agree on all aspects related to these matters, it’s if they work with their attorneys when deciding upon the final details. To make a divorce as amicable as possible, ironing out a separation agreement can make the entire process much easier and far less stressful.
When Do You Need a Separation Agreement?
Due to the many complex issues that come with getting divorced, it’s imperative that the agreement be finalized as soon as possible. However, while this is the preferred method for all parties, the separation agreement can be worked out at any time along the way. In fact, couples can iron out the specifics of this agreement just as they are ready to enter a courtroom for a hearing.
Is An Attorney Needed to Prepare the Agreement?
While you are not legally required to use an attorney when preparing a separation agreement, it’s highly recommended that each spouse be represented by an attorney when preparing a separation agreement. In order to protect the rights of each spouse, a lawyer can look over the agreement to ensure custody arrangements, child support payments, and property division terms are fair to all parties.
What Happens When a Settlement is Reached?
If at all possible, reaching an agreement prior to going to court is far more beneficial to everyone involved. If this occurs, the agreement can be drawn up by an attorney or even a mediator. However, once the agreement is drawn up and signed by both spouses, it becomes a binding agreement just like any contract. In addition, once the agreement is reached, it becomes part of the final divorce decree, making it a binding court order. If either spouse chooses to violate the terms of the agreement later on, they could find themselves in contempt of court.
Are You Required to Sign the Agreement?
As with any legal document, if there is something about it you are not comfortable with, it’s to not sign it until it’s been changed to your liking. With any divorce, no spouse can be forced to settle until they are ready. However, while some spouses may choose to drag out the proceedings, that can also backfire. By not negotiating in good faith, the other spouse can choose to pull out of the proceedings and let the court settle everything. Rather than let this happen, it’s to complete the agreement and be willing to compromise now and then.
Can One Attorney Work With Both Spouses?
The answer to this question is a resounding no, since one lawyer is prohibited from representing both spouses. Also, if one spouse chooses to not have legal representation, they may claim later they had no idea what they were signing. To avoid this, always hire an attorney to represent your interests when involved in divorce proceedings.
While there are a seemingly endless array of details involved when seeking a divorce, the good news is that a separation agreement can make the process much smoother. By working with an experienced attorney and being willing to negotiate in good faith, an amicable agreement can be reached in most cases. As with any divorce, it’s important to remember that if children are involved, both spouses should remember that they will not be the only people who will have to live with the terms of the agreement. Therefore, using common sense along the way can be beneficial for everyone. If you need more help, consider speaking to our divorce lawyers in NYC today.
Maintaining a Separation Agreement With a Brief Reconciliation
Separation agreements are a halfway step in the process of divorce. Legally, courts favor them because 1) they reduce immediate divorce caseload processing, and 2) they test whether a married couple is really ready to have a legal dissolution of marriage, i.e. a divorce, once and for all. In short, the separation agreement tends to be a trial run before the big divorce hearing occurs.
However, separation agreements are fluid even though they seem quite formal, and the actual terms of these legal arrangements depend on the couple involved. Generally, a separation agreement represents a contract between two spouses who are still married but going through separation. They were originally created to sort out early the financial responsibilities like child support, custody, alimony, visitation rights, financial obligations and even protective orders if needed.
The binding effect of a separation agreement comes in the process of both spouses signing the document and agreeing to follow it, with their attorneys as witnesses. A separation agreement can’t bind everything; for example, a judge will overrule an agreement if the court sees it has harmful to the children in a marriage. However, because these agreements tend to straighten out most of the financial matters in everyday life between a separating couple, the terms frequently tend to migrate into the final divorce agreement and order when the court finalizes a divorce.
With regards to a brief reconciliation, how it affects a separation agreement depends on the actual terms that are in place. For example, if the agreement has a protective order included in it, a reconciliation could actually be a breach of the terms involving physical distance etc. However, if the agreement terms have no mention about a restriction or limitation of a consensual nature, then the agreement could in theory still be active and stay in place having no conflict with the temporary nature of a brief reconciliation.
What exactly counts as a reconciliation legally depends on the given state where the separation agreement is enforced. Clearly, a one-night stand is not going to be seen as a full-blown reconciliation. However, if a spouse moves back in, spends a number of weeks living like a normal marriage, and then there’s another argument and moves out, the extended period could be seen legally as a reconciliation. The ramifications come down to the terms and how the spouses behaved. For example, the value of assets and financial responsibilities could change after the brief reconciliation if it was long enough, resetting the financial figures originally agreed upon. The nuances are plenty, and the real answer of how they impact the given agreement really needs to be sorted out with the given spouse’s attorney as soon as possible.
Is a legal separation a good idea if you’re unsure about divorce?
When you begin thinking that your marriage is in trouble and that divorce is the option that you should look at, then it might be wise to consider separation instead. A separation can be legally filed or it can be an understanding of the two parties that you will not have any contact with each other until the divorce is filed. Most states require that a couple remain separated for at least a year, with no physical contact, in order for the divorce to be granted.
A legal separation occurs when you go in front of a magistrate or judge and file the proper paperwork stating that you will not live together in the same home and that there will be no physical contact for a year in most locations. If you break that agreement, then the divorce might not be granted, or the required amount of time for the separation might start over.
A legal separation usually isn’t a good idea if you are not sure that you want to go through with a divorce. If you legally file for separation, then you will need to go back before a judge in order to get the paperwork annulled. This could take some time to complete. You could break the separation agreement if you get back together and not go through the the divorce in that way, which might be faster than waiting to talk to the judge about annulling the separation agreement.
If you have any feelings left for the other person, then it’s to just spend some time apart from one another to see if those feelings fade or if you end up missing that other person. It’s a better solution than going through the court process to get the paperwork filed. However, if you do see that you are headed for a divorce, then it would be to file the proper documents so that nay property is divided in the correct way and so that there is a date on paper of the time when you separated. This will be the basis for when the divorce papers can be granted.
A separation can be a time for both of you to work on yourselves. You can seek counseling or discover why one of you feels that the other failed in the marriage. It could take a few months or a few years of being apart to learn these reasons, but it will make it easier to stay married after you’re separated if you don’t file in court than if you just filed and went ahead with the divorce. Take the time needed to examine the marriage itself to see if it’s what you want and if you really want to go through a divorce hearing with someone you love.