Separation

Often times before a married couple divorces, they will decide to separate for a period of time to determine if divorcing is their best option or if there is a chance for reconciliation. In those cases, the couple may enter into a separation agreement as an interim measure. If one spouse decides that they want a separation and the other spouse does not or they cannot agree on a separation agreement, the spouse who wants the separation can go to court seeking a judicial separation.

A separation agreement is a written contract signed by both parties and acknowledged or witnessed. There are two types of separation agreements that are entered into. As mentioned above, there is a judicial separation. In this action, one spouse will file a court action asking the court to determine an equitable separation agreement. Since the grounds for this and the grounds for divorce are so similar, this does not happen often.

The other and more prevalent agreement is called a separation by agreement. This type of agreement is reached by the spouses and outlines many of the same things that are decided in a divorce action, like division of assets, division of debts, alimony, child support, child custody and visitation.

In most cases, it is highly advisable for the parties to retain counsel to negotiate and memorialize the separation agreement. Although both parties can agree to use the same attorney to draft the agreement, it is advisable to at least seek out the advice and counsel of another attorney to make sure your legal rights are being protected, although this is obviously more expensive.

Should the couple ultimately decide to divorce, a properly negotiated separation by agreement often will most times incorporated but not merged into the divorce. This means that the agreement becomes part of the divorce decree, but the agreement stands on its own. This is a very important point because if the agreement is breached by one spouse post divorce, the other spouse can file the action for breach either in the matrimonial court or in civil court as a breach of contract action. For example, if an ex-husband is responsible for paying for a child’s school clothes and refuses to pay, the ex-wife can file an action in civil court for a breach of contract action and ask the court to enforce the separation agreement.

Separation agreements can also contain a provision that if a dispute arises in regard to the agreement, the parties agree to binding arbitration. In this type of action, both parties will present their cases to an arbitrator instead of a court, and the arbitrator’s decision will be final. The benefit of this action is that it often will take much less time than filing a court action and having a court render a decision. It may also be more private.

It is important for both spouses to negotiate a separation agreement in good faith and to put any child’s interest at the forefront of any agreement. As mentioned above, the most important terms of a separation agreement will be spousal support, child support, and child custody issues.

Obviously, a separation agreement means that the spouses will live and continue to live separate and apart from each other and will reside wherever they deem fit to live. In addition, each spouse will not interfere, directly or indirectly, from the other spouse as if both parties were single and unmarried.

Wills & Estates

Both parties will also agree on how they want their estates to be handled. In many cases, the parties that have reciprocal wills where the other spouse is the executor or executrix and the beneficiary of the estate. As the couple is separating, chances are the spouses will not want their soon to be ex-spouse to remain as the executor/executrix and/or primary beneficiary of the estate.

Alimony / Spousal Support

The parties will also have to negotiate spousal support. To determine the support provision, the net worth of the couple is calculated and the standard of living during the marriage and other spouse’s disposable income that can be contributed are considered. Then, agreement is reached on the amount, duration and method of spousal support.

If the parties both work and there is no need for spousal support, the parties may agree to waive the spousal support provision.

Children and Separation

As far as child support and custody is concerned, child support is calculated on the percentage of the parents’ income specified by state statute. This provision cannot be waived. The Child Support Standards Act (CSSA) is where the calculation provision is found.

In addition, the parties will have to agree on where the child or children are going to live and how and when the other parents will be granted visitation. One spouse will become the custodial parent where the child or children will primarily live. In New York, it is not mandatory but is highly advisable to resolve child custody issues through mediation. Remember, the best interest of the child or children is paramount. Mediation will often provide an objective plan based on the best interest of the child or children.

Legal Terms of A Divorce Agreement

Other provisions of the separation agreement that should be included are more legalistic in nature but no less important than those listed above. They include: a severability clause, which means if one aspect of the contract is deemed to be invalid, the rest of the agreement shall remain in force, and a breach provision, which spells out what should happen if one of the parties does not abide by the agreement what the other party can do to enforce the agreement. Other provisions include a modification clause explaining how the agreement can be amended in the future, a governing law clause outlining what law is going to govern the agreement, a default clause, which entitles a non-breaching party to sue the other party for attorney’s fees and/or penalties.

If a couple decides after separation to reconcile, the separation agreement can be determined to be null and void.