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The decision to move on from a marriage can take place over the course of many weeks or even months. For many people part of the divorce is the decision to have a separation from the other party. Separations can mean many things. In most cases, people who are planning any kind of separation will decide to move out of the primary family home to another living space. It’s important to keep several things in mind as this process continues. One of the most important considerations are any kind of legal issues that may arise as a result of the separation. Some states do not recognize any kind of formal separation in law. Others, however, view this process as one that has legal obligations and standing in the court system. One such place is New York state. New York state is one of several states where the process of getting a separation can have not only emotional and physical consequences but also consequences that are formally recognized by the regional court system.
Filing a Legal Separation Agreement
All couples in Brooklyn should be aware of what is involved in filing any kind of legal separation agreement. Each party should be aware that filing for legal separation is not the same thing as filing for divorce. Each party to the agreement is not free to get married again. At the same time, many issues related to a divorce can also be resolved via the process of legal separation to the satisfaction of both parties. It is important for all parties involved to understand exactly what is involved in this process. It’s also important for the people involved in the process to understand that a legal separation is legally binding document that cannot be dismissed lightly even if circumstances change later on in some way. This is why is best to consult with a professional. Lawyers can help by crafting a legally binding document. The document can be agreed to by both parties and can be later used as part of any decision to get a divorce is this is the course of action they would like to take.
What is Agreed Upon
A separation agreement can be just as detailed as any other form of divorce contract. Each party should consider what they would like to it cover. For most parties, this begins by deciding where each party will live. One party can choose to keep the primary home while other decides to move somewhere else. The agreement can also spell out many kinds of financial aspects pertaining to the case. For example, it can be legal document that indicates what kind of child and spousal support should be paid to to the other party during the separation. It can also be used to indicate what kind of child custody arrangements that each party agrees to during the separation. The same is true of other issues such as the division of current marital property and how this is to be assigned to each party.
In Brooklyn, a legal separation agreement is filed with the King’s County clerk. If one party lives in another borough, the agreement will be filed with each county’s clerk. The agreement must be voluntarily signed upon by both parties and agreed to by each one of them. This must be done in front of a notary. Each spouse is allowed to contest any part of the agreement. They can do so until a final separation agreement is worked out that is mutually fine with each spouse. The agreement can also be modified later on if circumstances change. Doing so will require a legal process that may take some time to complete.
Any separation agreement can also serve as the first step on the way to a divorce. In New York, if both parties agree to the terms of the separation and keep up the conditions required, after a year has passed the parties can then apply for a formal divorce. Some couples, however, may have no wish to remarry. In that case, they can simply agree to carry on as agreed upon under the agreement. While not all states allow a legal separation, if the other party moves to another state, the separation is still considered a legally binding document in that jurisdiction. If the other party breaks them such as not paying the agreed upon child support, they can be take to court.
In New York, couples might be unsure whether they want to divorce, so they’ll live apart to test the reality of permanently separating without the irrevocable step of divorce. They’ll divide assets, make arrangements for child custody and split the liabilities of the marriage. The process of separation means that the couple is still married, but they won’t incur the debt of the other while living apart.
Married couples in Brooklyn, New York can file for legal separation through the court. While some couples decide to live apart without a separation agreement, it can make things easier when divorce could be the outcome. A legal separation isn’t a divorce though. The couple is still married at the end of the separation process.
The separation agreement will detail the support each parent will provide for a child. It will detail child custody as well as visitation rights. When there are no children in the marriage, the separation agreement can be simpler, but there are assets to be divided as well as liabilities. In a separation, the couple has agreed to live separately, which can impact a jointly owned home, property upkeep and insurances.
Legally Binding Contract
The detailed separation agreement is a contract that is legally binding in the courts. Each spouse will hire their own attorney to help draft terms of separation after meeting with both parties. It’ll cover everything the couple needs separated to live in different households like property, spousal support or child custody arrangements.
After the couple have agreed to the terms of their separation, the contract is filed with the court. Specifically, it’s filed with the New York’s Clerk of the County where at least one half of the couple lives. Before filing, the contract must be signed voluntarily by both parties to be legally binding. It’ll be notarized and last for one year. After the year of separation, the couple can file for a divorce, which can be done easily with the same terms as the separation agreement.
Complaint for Separation
A complaint for legal separation might include a summons. If the separating couple can’t agree on terms for the separation, they can file a complaint with the court. The complaint will detail the full names, birth dates of the spouses, children in the marriage and the date of the marriage itself. There will be a section to explain the remedies that the spouse is seeking with the court. One spouse might not want to share custody, or the other might not want to move out of the family home. The complaint will ask the courts to rule on the disagreement.
Grounds for the Legal Action
In New York, there are grounds for legal separation that include adultery, imprisonment, neglect and failure to provide support. These are the same faults or grounds for a divorce too. The couple seeking a separation can live apart for a year and decide to file for divorce. The divorce doesn’t happen automatically after 1 year. The couple must seek action in the court for the divorce.
There are times when a person might move to brooklyn while in the act of getting space in the marriage. Unfortunately, if only one spouse lives in New York, that spouse will have to be there for 2 years before being able to file for separation in the court system. There are exceptions to that rule, which include the fact that the separating couple were married in New York, lived in the state for years with one still being a resident or the grounds for separation happened in the state.
Initiation of the Process
To begin the process, the plaintiff spouse has to file a summons on the complaint for legal separation. Even if both parties agree to the separation, one spouse has to initiate the proceedings. Someone has to serve the defendant with the complaint, which might involve personal service. It can be done amicably by the plaintiff spouse or delivered by a process server depending on the circumstances of the separation.
While a separation isn’t a divorce, it’s a trial run where the couple has decided to separate their lives and continue as single people. They’re married but not living as part of a family unit. The process can be as complicated as a divorce, so lawyers need to be hired to draw up the agreement as well as file complaints and resolutions with the court.
A separation agreement refers to a contract made between two partners contemplating to end their relationship. For a separation agreement to be enforceable, it must be between two people who previously cohabited. The two partners should now be living apart. The parties to a separation arrangement need to also be mentally sound, 18 years and above, and capable of entering into a contract. A legally valid separation contract needs to be in writing and signed by the involved parties in the presence of witnesses. Here are some of the frequently asked questions about separation agreements and how a lawyer can help with this type of contract.
How Does a Separation Agreement Differ From a Prenuptial Agreement?
Many people wrongly use separation agreements interchangeably with prenuptial contracts. The truth is, a prenuptial agreement is different from a separation agreement in the sense that it is created prior to a weeding and is used to govern spouses during and after their marriage. It lays down the duties and rights of spouses as implied or expressed by the law.
A separation agreement on the other hand is a postnuptial agreement. It is entered into when partners are contemplating a divorce. The agreement basically lays out what the terms of a separation and later divorce are going to be.
What Are the Provisions in a Separation Agreement?
Separation agreements cover provisions regarding entitlements, estate distributions, living requirements, child support, maintenance, distribution of separate and marital assets, child provisions, and child custody. In this contract, spouses negotiate and can include any provision.
While a separation agreement is entered into to avoid the costly and long court process, the contract must still be approved in court. The agreement needs to be presented to court at the hearing. The court will question the spouses and take any evidence and testimony into consideration before approving all or some of the terms set out in the separation contract.
The main reason these agreements pass through a court process is for the judge to ensure that the contract is not made based on duress or fraud. Furthermore, where there is a child involved, a court process ensures that the best interests of the child are represented in the agreement.
Under What Circumstances Can the Court Set Aside or Vary the Agreement?
A court will set aside the provisions of the contract or the entire contract if:
One of the spouses failed to disclose significant debts or assets that were present during the time the agreement was made
· One of the spouses did not fully understand the consequences or nature of the agreement
· Where terms of contract law have been undermined or overlooked
How Can You Get Divorced Based on A Separation Agreement?
There are two popular ways spouses can get a divorce through a separation agreement. The first way is known as the conversion divorce. In this case, a spouse can ask for a divorce if they have complied with the conditions of a separation contract for one year or more. In this case, a spouse has to wait for one year after the agreement has been entered into before suing for divorce.
The second way of getting a divorce based on the separation contract is through the no-fault divorce concept. According to this concept, a marriage has to be irretrievably broken for six months and over. The six month window does not start from the moment you enter into a separation agreement, instead, it begins from the time the marriage was irretrievably broken. This means spouses can pursue a divorce action after the separation agreement is signed.
How Can a Lawyer Help With Separation Agreements?
Help Spouses Make Informed Decisions
One of the reasons the court can choose to set aside a separation agreement is when they find that one of the spouses did not understand the terms of the contract. Separation agreement lawyers help couples understand the consequences of contracts they enter into thus enabling them to make informed decisions.
Drafting the Terms of the Agreement
While many spouses may choose to download separation templates and make agreements on their own, where complex issues are involved, it is important to hire a lawyer. In high net worth divorces, the stakes are high because the assets and liabilities involved are worth a fortune. High net worth couples should avoid getting any aspect of a separation agreement wrong. Hiring a lawyer to draft a separation agreement will ensure that every significant object has been addressed.
Summing It Up
A separation agreement helps couples resolve pertinent issues and proceed to a divorce in an amicable way. While this contract is necessary to avoid a long and expensive court process, the agreement has to go through court for approval. The presence of an attorney during the drafting and signing of separation contracts is important in ensuring that all the terms and conditions set out in the agreement are fair and in the best interests of all the parties involved.