Here’s a great article from a fellow NYC Divorce Lawyer – Todd Spodek.
A legal separation allows you to do everything involved in a divorce, except that you remain married in name only. The alimony is determined, the property is divided and you live separately. Most people use legal separation if they are not ready to divorce. However, you need to know when your spouse files for a legal separation so that you can prepare adequately for any change. Hiring an NYC divorce lawyer can help.
You will receive a notification from the spouse whenever he files for a legal separation. However, some scenarios such as domestic abuse and infidelity can affect how you communicate with your spouse. He might choose not talk to you about the legal separation based on his emotional state. In such cases, a mediator will come in to take care of the communication break down between the two of you. The mediator will facilitate the negotiation process so that both of you agree to sign it. Sometimes the spouse may not agree with the terms established by the mediator. If he refuses to sign, you may require the intervention of a divorce attorney to initiate further negotiations.
You might require a court order if both of you do not reach an agreement. Court orders come from the family court in the state where you live. One of you will have to file a complaint in order to get a court order. The complaint can be about the child’s custody or visitation rights. If the complaint is about the child, you must file it in the state where the child lives. Once one of you files a complaint, it means the other will face a lawsuit. The lawsuit will try to solve the issues highlighted in the complaint.
Compelling your spouse to sign an agreement document with a court order is worth the hustle during a legal separation. The court order can also enable you to obtain the right to check whether the spouse adhered to the rules stipulated in the terms of the agreement. However, it is wise you involve a lawyer if you want to enforce the terms of the agreement using a court order. The lawyer will come in handy when preparing to file the complaint. Other times, you may need a lawyer by your side if you are the defendant.
When two people agree to separate in marriage, they need to come together and discuss some vital issues like child custody and housing. House agreement is among the most critical things to consider because you will not continue to live together after a legal separation. According to the state rules, the husband and the wife must live at different places for a legal separation to hold. However, the agreement depends on the state you live in. Some states treat legal separation like divorce while others do not even have the guidelines for legal separation. In such cases, a couple may have to create their own terms, including housing agreements. Others rely on the court to control the negotiation process.
Sometimes one of you may refuse to leave the house, especially if you own it together. In this case, you may need a court order and a directive from the judge to compel him to leave. This usually happens when he is found guilty of domestic violence or when his presence seems detrimental to your safety and the children’s. The agreement you make must clearly indicate the one to move out. Never leave your home without a firm agreement because it will most likely affect child custody. Speak with your lawyer to see how moving out could affect your case under the laws of the state.
Once you agree on a legal separation, you are officially on your own. However, you can later decide to change the legal separation to a divorce. The laws that control the transition vary with state. However, both laws require the spouse who wants the separation to notify the other party in advance. The notification document can be served by the spouse or any other individual who has nothing to do with the case. Once you receive a notification from your spouse, you are required to give your feedback within a specific timeline. You can either choose to agree or disagree with the terms.
In most cases, if your spouse files for a legal separation, you will be notified by the spouse unless there are some domestic abuse issues or other problems. For those cases, a certified family law mediator will step up and take care of the separation documents. They can also help you to negotiate your agreement so that your spouse will agree to sign it. What happens if they refuse to sign? That is where you may want to hire a family law mediator to negotiate the agreement.
What Happens if No Agreement Can Be Reached
If an agreement cannot be reached between the husband and wife, they might have to get a court order. Getting a court order means that one spouse will have to file a complaint. This initiates a lawsuit against the other spouse, and after that lawsuit has been opened, it will sometimes resolve issues like child support or child custody. It will also resolve visitation rights, alimony and property division. If your ex spouse refuses to sign the separation agreement, enforcing it with a court order is one of the ways to go. If the other spouse fails to abide by the terms of the agreement, obtaining a court order to find if the other spouse failed to follow the order is the route. You may also want to consult with a lawyer if you have to enforce the agreement. Other times, a lawyer can come in handy if you are the defendant of the separation agreement.
The Housing Arrangements
When two spouses have agreed to separate, they cannot continue living under the same house. To be legally separated, the husband or wife will have to live at a different residence. Whether a couple can file for legal separation will often depend upon the laws of the state. You have some states that have made legal separation available, but the process often has a similar appearance to divorce. Avoiding this problem, sometimes a couple will create their own separation agreement, and other times, they rely on the court for resolving the marital problems.
What to Understand with a Separation
Once a couple has filed for separation, they will be officially separated, and for those couples who later decide to divorce, they can later choose to convert the legal separation over into a divorce. While the laws for each state will differ, the spouse who wants a separation will have to notify them at some point. This is called the service of process, and the responsibility to notify the other will fall on the petitioner. The paperwork can also be served by the local sheriff or adult who does not have anything to do with the case. This also depends on the state.
After the spouse has received their legal separation paperwork, he or she will normally have to give his or her response within a specific time frame. During that time, he can agree or disagree with the terms, but a failure to respond means that the court will enter a default judgment, and the favor normally goes to the spouse who filed for separation.