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How Can I Get a Divorce Using a Separation Agreement?

July 18, 2016 Our Blog

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 best 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 best 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 best 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 best 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 best 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.

Is a separation agreement enforceable?

Separation agreements are contracts – which state the terms under which the two spouses will live apart. A separation agreement can cover all forms of things, like marital asset division, child custody, and many other items. The agreement can govern ALL the elements that a divorce agreement would cover – without it being considered an actual divorce. It can resolve all the issues that would be normally decided by a judge. The only thing it can’t do is grant a divorce.

In most states, the two parties can agree to the separation agreement whatever/however they wish. They are not required to get permission from a judge – in order to validate their agreement. Negotiating a separation agreement means things are less adversarial. In addition, because it is a formal agreement – signed by both parties, it’s a legally binding document. As a result, it’s something which CAN be enforced. For example, if either party is in breach – a lawsuit can be filed to resolve the issues and try to find an amicable resolution. It is a legally binding document – and many people forget this.

Any document where you agree to certain terms – can be enforced by either party. You don’t need an attorney to negotiate, or draft the agreement – but it can certainly help. In order to enforce it, you’ll probably need to hire an attorney who draft the necessary lawsuit papers and get the agreement brought to a judge.

If you are having issues with your spouse abiding by the terms of the agreement – its a good idea to try to handle it like rational human beings. If the spouse won’t cooperate, then you should hire an attorney who can help you enforce the agreement.

If one party has breached the contract, then the other party can sue for whatever damages are relevant. For example, if your spouse was going to pay you spousal support – and didn’t do it, then you can sue for that and also ask for legal expenses to be covered as well. The court can even force the spouse’s property to be sold to pay for the damages.

If either party breaches, the plaintiff can sue for “specific performance,” which is a court order to force the breaching party to do what the separation agreement requires them to do.

In summary, if you’re spouse is breaking the terms of the agreement – you can hire a NYC divorce lawyer and force him/her to abide by the terms.

A separation agreement is created between a married couple in two different types of situations. First, there are instances in which a married couple believe they cannot live together, at least at the present time. They do not want to terminate the marriage. Rather, the draft a separation agreement which sets forth the rights and responsibilities of each spouse.

Second, there are situations in which a married couple cannot live together as man and wife and pursue a judicial legal separation. As is the case with the more informal separation process, the couple does not desire to terminate the marriage for one reason or another.

The possibility exists that a party to a separation agreement may end up not abiding by its terms. The question becomes whether a separation agreement can be enforced. The answer in either scenario is yes.

A Separation Agreement is a Binding Contract

In the case of an informal separation of spouses in which they draft and sign and agreement, the couple creates a binding contract. As is the case with any legitimate type of contract, if a party does not honor its terms, the other individual can file a case in court to seek enforcement of the agreement.

The court can issue an order directing the party not in compliance with the separation agreement to follow its terms and conditions. In addition, the court may order the party in breach to pay monetary damages to the other individual.

There exists one caveat to seeking judicial enforcement. The separation agreement between the parties must meet the requirements of a contract before it can be enforced. This underscores the need to get professional legal assistance in the drafting of a separation agreement.

Agreement in a Legal Separation Case

If a couple has filed a legal separation case, the agreement reached in those proceedings is also enforceable. Rather than file a contract enforcement case, the injured spouse files a motion with the court in the legal separation case .The motion explains the breach of the agreement and requests that the court issue an order enforcing the contract.

Depending on the circumstances, the court in a legal separation can may also direct the spouse in breach of the agreement to pay monetary damages. In addition, because the separation agreement in this type of case previously would have been made part of an order of the court, the spouse in breach could be held in contempt of court, if a judge were so inclined to take that step.

In either scenario, retaining legal counsel to obtain enforcement of a separation agreement typically is a wise course. An experienced family law lawyer understands relevant law and how the court system works in regard to enforcement of an agreement or prior court order.

Is a separation agreement valid if the papers weren’t filed in court?

Unfortunately, sometimes the marital union becomes fractured and neither party is interested in restoring the connection. Under these circumstances, the first step is usually separation. Some opt to go through the court system to begin the process of separation and eventually dissolving the marriage: while others choose to separate on their own terms and in their own way. However, is a separation agreement that wasn’t filed in court legally binding?

To Involve the Court…or Not?
The process of separation can become a sticky one when two parties decide to draw up their own separation agreement without the help of the court system. Although there are a few things that should be done in cases where a couple decides to bypass the court system, it can be done.

The Process…
Two people who decide to separate need not go through the court system for their separation to be effective and legal. Instead, in most jurisdictions, you simply attach the Marital Separation Agreement to the complaint and have the court merge the documents. If the documents are incorporated the Marital Separation Agreement becomes an enforceable court order. Simply merging the documents with the final judicial decree makes the Marital Separation Agreement a contract between the two people involved, and although it is legal, it is not enforceable.

However, if one of the involved parties violates the terms of the agreement monetary damages can still be sought. However, the only way to legally enforce a Marital Separation Agreement is to have it incorporated into the judicial decree. At that point, the enforceability of the agreement becomes much stronger: nonetheless, even without filing a Marital Separation Agreement in court, it is still effective. You are only limited by how far the court can go to enforce the agreement. Without court action, the enforcement is only the threat of monetary damages.

Although court involvement is not necessary for a Marital Separation Agreement, state law determines other factors. “Aseparation agreement is not proof of the parties’ separation. It is a document reciting their promises and agreements. Whether it makes a divorce easier or faster is a matter of state law.”

The law does effectively leave room for a Marital Separation Agreement to be drafted and maintained independently of the court system. However, its enforceability is severely limited, and generally speaking, the only real consequence the violating party faces is the threat of monetary damages. Conversely, when a separation agreement is drafted and incorporated into the judicial decree, it becomes legally enforceable to the full extent. Any violating party can be held in contempt for violating the terms of the agreement. Although a separation agreement doesn’t require legal filing in court and is still valid, you must separately sue the violating party in a separate case to fully enforce the terms of the agreement.

Can we continue to live in the same house if we’re separated?

Spouses often get separated, but live in the same house. Getting different houses is just too costly. Reasons for such a decision can be complicated – typically it’s because of financial reasons, or because you want to remain close to your children. In some cases, if your child has a handicap/disability, it may be difficult to care for your child without being near him/her. Couples can definitely live in the same house, if they are separated. If you decide to live in the same house as your spouse, here are some things to consider.

Both you and your spouse should agree to discontinue the marital relationships. For example, you should stop having sex, or socializing together. There should be a physically separate bedroom, with different entrances. Each person should clean up, after himself or herself. In addition, you have to do your own chores – and he has to his own chores. When at home, the separated couple should no longer prepare meals, or eat together. In addition, you and your spouse should use your own money to buy foods, supplies, etc, for yourself. You shouldn’t ask your spouse for any money or anything at all.

You should also have separate bank accounts, and avoid any financial confusion between the parties. You should create separate bank accounts, and separate yourself financially from your spouse. If possible, preparations should be made to find other dwellings. Outside of the house, spouses should cease to function as a couple. Each should make it apparent to their friends they are separated – but only exist under the same roof. They should not hang out with the same circle of friends togethers. Wedding bands should be removed as well. Any place you would normally go together, should be done desperately.

Lastly, be prepared to explain to a judge all the reasons for why you’re separated – and want a divorce, yet live under the same roof. It’s a good idea if you and your spouse sign a written agreement, that the intent to separate is permanent. In order to get a judge to grant a divorce, or legal separation, you have to prove your intent to disassociate from your spouse. Living together with the spouse can make it difficult.



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