A marriage separation agreement is an agreement signed by both spouses who wish to separate and live apart from each other, dealing with issues regarding child support, custody, visitation schedules, spousal support, division of property, debt, bills payment, pension, and retirement, to name a few.
A marriage separation agreement does not need court intervention. This makes it easier and less costly to facilitate, for as long as both spouses sign the agreement. It does not dissolve the marriage bond, and for this reason, both spouses cannot remarry.
A marriage separation agreement must be executed with the same formalities as a deed and notarized with an acknowledgement. Although not necessary, it may be filed with the clerk of the county where at least one spouse resides. The filing with the county clerk makes the agreement easier to enforce with the court in case the terms of the agreement are not being observed. It also prevents the parties from making unauthorized changes and avoid the issues of loss or destruction of the marriage separation agreement.
Marriage separation agreements are usually resorted to by couples who wish to live apart, but are open to reconciliation and uncertain about moving forward with the divorce. With a marriage separation agreement, the spouses are still considered married. Therefore, the spouses can still file their tax returns jointly and avail of the deductions and other benefits of a married couple. A spouse, in certain instances, can still remain covered under the other spouse’s health insurance policy with the other spouse’s employer, saving money. Sometimes, the spouses agree to remain married even if living apart in order for one spouse to be eligible to receive the other spouse’s social security, military, and/or veteran’s benefits.
The marriage separation agreement can also state that any future property or debt acquired by either spouse after the separation agreement’s execution shall be considered the separate property or debt of such spouse.
Although a marriage separation agreement, when executed correctly, is considered valid, it may be challenged, contested or set aside through the court on the following grounds: (a) spouses did not have separate attorneys; (b) fraud; (c) coercion or duress; and, (d) unfair or inequitable provisions.
If the spouses did not have separate attorneys when negotiating the marriage separation agreement, the court may view the agreement as suspect and unfair since both spouses’ positions are normally adversarial and conflicting by its nature. There is fraud when a spouse does not fully disclose his financial assets, giving rise to a ground to invalidate the marriage separation agreement. When a spouse is pressured to sign or not given enough time to review it, the court may not enforce it. The court may also declare the agreement to be inequitable and unconscionable when it appears to favor and benefit only one party to the detriment of the other.
Generally, the reconciliation of the spouses results to the invalidation of the agreement. However, a lawyer can insert a reconciliation provision in the agreement, superseding common law, and stating that a reconciliation of the spouses does not void the agreement, and only a separate agreement signed by the spouses, and not physical reconciliation, can invalidate such agreement.
The spouses can convert the marriage separation agreement into a divorce (Domestic Relations Law § 170(6)) after 12 months from execution. Divorce absolutely dissolves the marriage bond, and the spouses will no longer be considered married and can finally remarry others.
If the spouses, however, do not want to wait for 12 months, New York Domestic Relations Law § 170(7) already recognizes the no-fault divorce, where divorce can be granted based on a sworn statement of at least one spouse that the marriage has been irretrievably broken for at least 6 months.
Generally, a no-fault divorce is cheaper than enforcing a marriage separation agreement, because a no-fault divorce does not require trial. Enforcing a marriage separation agreement requires a trial, showing proof of breach the agreement.
The negotiation of a marriage separation agreement is adversarial in nature, even if both spouses have a good relationship and agree on a lot of marital matters. It is adversarial in nature because both spouses have naturally conflicting interests in terms of custody, visitation, property, and financial matters. For this reason, there is no one-template-fits-all agreement. A detailed agreement drafted by the separate lawyers of both spouses is advisable and recommended.
If you are considering a marriage separation or divorce, we at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].