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If you or your spouse have reached the difficult decision to part ways, you face important questions on how to handle the property, wealth and children your marriage produced. A carefully-drafted separation agreement by one of our Long Island separation agreements attorneys can help you answer these questions and avoid the augmented stress and uncertainty of a court proceeding.
Generally, spouses have become accustomed to a certain standard of living and, in some cases, one becomes dependent on the other. A separation agreement can address alimony or other spousal support.
In one alternative, the other spouse can completely waive alimony or support. You or your spouse could agree on an amount. Either way, the separation agreement bars the spouse’s right to sue for alimony or post-separation support. Such may avoid an airing in court of accusations of infidelity, abuse, indignities or other misconduct that caused the marital discord.
Separation agreements often establish a scheme to divide marital property and allocate responsibility for particular debts. Terms may address who keeps the property and who assumes the mortgage. In some cases, the non-residing spouse may take on the mortgage payments and have them treated as spousal or child support payments.
For property and debts in each spouse’s individual names, an agreement on division may not require much effort or oversight after the spouses sign. Joint debts complicate matters. While you and the spouse can decide upon ultimate responsibility between you, creditors are not bound by separation agreements. If both your names are on the account, you have to contemplate how you’ll make sure the other spouse keeps the credit card or debt payments current. The other spouse’s non-compliance could ruin your credit.
Spousal Inheritance Rights
Without a separation agreement, you cannot shut your spouse out of the estate. In other words, at your death, your spouse has certain rights to your estate even if you leave the spouse out of your will. If you die without a will, your spouse automatically gets a share of your estate as determined by the statute.
The separation agreement can specify that your spouse waives his or her rights to share in any part of your estate. These rights include dower, election for a spousal share in place of the will and to be a beneficiary of your spouse’s estate.
Divorce terminates the spouse’s rights to share in your estate. Without a separation agreement, you take a chance that you’ll die before a divorce becomes final and your spouse will be able to share in your estate.
Provisions About the Children
In your separation agreement, you can provide for custody arrangements. These may include sharing legal custody with one spouse having primary physical custody, or a parent having both the sole physical and legal custody. For visitation, you can establish a schedule or frequency of weekends, whether to alternate holidays and restrictions on non-related overnight guests if that is a concern of yours.
With minor children also comes the matter of child support. Here, the agreement may set the amount of monthly support and determine who provides for the children’s health insurance. You can also address your children’s higher education. Specifically, such issues include who pays, the amount and any limits tied to a particular college or university.
The court is not automatically bound to honor provisions about minor children because it guards the best interests and general welfare of the children. Thus, an agreement may not prevent your spouse from asking a court to change custody or support terms. A judge may oblige if the terms are not in the child’s best interests, a court order may replace what you and the spouse agreed.
A Basis for Divorce
New York Domestic Relations Law Section 170(6) allows the separation agreement to be a ground for divorce if you have lived separate and apart from your spouse for one year after signing it. To get a divorce on this basis, you need to file the agreement with the clerk of court’s office before or at the time you ask for a divorce. Also, the court will want proof you have fulfilled your promises under the agreement.
As an alternative, you can seek a divorce by claiming an “irretrievable” deterioration of your marriage for a six-month period. If you go this route, your divorce does not become final until the court or you and your spouse – after the start of the divorce action – have resolved your property division, custody, spousal support and child support issues. While each case differs, these disputes could linger for numerous months into the divorce action.
Enforcing the Agreement
Separation agreements are contracts. If your spouse or ex-spouse violates it, you can seek an order in court for the spouse or former spouse to perform. Our attorneys can advise you on the benefits of allowing the agreement to survive the divorce.
Having an attorney assist you can help avoid obstacles to its enforceability in court. Judges likely will not enforce them if you tried to hide property or accounts from your spouse while you worked out details of the agreement. Lying about your property or other important matters may void the agreement. However, the mere fact that you fall short of an obligation doesn’t prove fraud. Also, be aware that resumption of marital relations, such as living together, may revoke the separation agreement.
Contact one of our long island separation agreements attorneys for advice or representation in fashioning an agreement that protects your interests.