What Is Marital Separation?
This sounds like a question with an obvious answer, but there are a number of things that couples need to sort out when they separate. Issues such as how bills will be paid, what property belongs to whom, and how custody and visitation will be arranged are all key questions that couples will need to answer for a separation to work.
In some cases, couples separate as a prelude to a divorce. In other cases, separation gives them the time they need to work out their differences. Either way, it provides the couple the space they need without the stress of an actual divorce hanging over their heads.
Essentially, a separation agreement can solve many of the same problems that a divorce would but it allows you to move at a slower pace. Divorce proceedings require that deadlines be met. Often, the courts will have to be involved. Separation agreements, on the other hand, are a mutually agreed upon contract between the two parties that is nonetheless enforceable should one party not live up to their end of the agreement.
Essentially, separation agreements are a type of mediated agreement. Mediation is generally cheaper and more efficient than litigation, but it is not always appropriate to every divorce situation. For instance, if one partner has been abusive or has a problem with drugs or alcohol that puts you or your children at risk, coming to terms in a mediated separation may not be in the cards. Separation agreements require that both parties are willing to come to the table willing to make concessions and that each party has a general belief that the results of mediation will produce successful results.
What Types of Issues Are Decided in a Separation Agreement?
Typically, there are three major issues that are decided in a separation agreement. Those are:
- Spousal support (alimony or maintenance),
- Child support payments, and
- Custody or visitation arrangements.
While couples can come all of these decisions on their own, having a separation agreement in place takes the form of a contract between both spouses to settle questions related to their separation. Even in instances where divorce seems inevitable, spouses may wait until their lives have settled down before going through the process of divorce. The contract will include both the rights and obligations of both spouses involved and the court will enforce the terms of the agreement under the threat of administrative penalty.
Why Not Just Get a Divorce?
A written separation agreement can function in much the same way as a divorce. You can reach a property settlement. In addition, you can outline child custody and visitation arrangements. You can establish child support and spousal maintenance agreements.
Furthermore, you can accomplish all of these goals in a very civil manner — a manner that also typically costs less than divorce and avoids litigation.
If you do reconcile with your spouse, you can place terms in the separation agreement that determine when it becomes void. For instance, if you and your spouse begin living together again at any point, you can place a clause in the contract that voids the separation agreement.
If you don’t reconcile with your spouse and you end up going through the divorce, the separation agreement can be rolled into the divorce proceedings which can save you money on attorney costs.
No matter what your goals are, you can count on us to guide you down the right path. We can do that because we take the time to listen to you. We will learn about your goals and we will give you honest guidance.
Separation Can Lay the Groundwork for Divorce
There are two major benefits to a separation agreement. Firstly, many of the arrangements that are laid out can be rolled over into a divorce decree should you and your spouse go that route. Secondly, if you and your spouse comply with the terms of a separation agreement for more than one year, the court will grant the divorce based on that factor alone. Additionally, if you or your spouse feels the need to move on sooner than one year, then the divorce can be filed on no-fault grounds.
How Separation Agreements Work
While deciding on the terms of a separation agreement, each spouse ideally has an attorney present who represents their interests. While agreements can be mediated by a single attorney, the courts will closely scrutinize agreements in which each party did not have their own. In all cases, the courts will look at issues related to the children including child support payments and custody and visitation arrangements. If the two parents cannot come together to decide these issues amicably, then legal separation may not work for them.
Other reasons to have an attorney present during a separation agreement include:
- Fraud. Issues concerning child support and the division of assets require that spouses accurately and honestly disclose their financial information. In cases where one spouse attempts to hide assets or conceal streams of income, they are committing fraud.
- Coercion or duress. In cases where one spouse feels pressured to sign a separation agreement that they either don’t fully understand, are being threatened to sign, or haven’t had a chance to read over, having an attorney present will limit the potential negative impact of an unfavorable agreement.
Most importantly, having an attorney advocate for your interests ensures that whatever deal is reached is fair and equitable to both parties and any dependent children the couple shares.
Is It Time to Talk to a Separation Agreement Lawyer?
For a consultation about legal separation agreements, call us today at 518-213-4204, or contact us online to schedule an appointment with an Albany separation agreements lawyer.