Many people call us asking about preparing a separation agreement. They don’t want a divorce, but what some clarity between them about money and children and houses. Some want to sign a Separation Agreement, but want to continuing living in the same house. Others are going to live apart for a time, but don’t want to commit to a divorce — a trial separation. Others want to keep the other spouse in health insurance or some other benefit they would lose if they got divorced but to resolve everything else — a divorce in all but the legal sense. How do these work?
A Separation Agreement is different from a divorce in that you are still married. That seems a bit obvious, but it means that you still have legal obligations to each other. You also still have legal claims against each other. Whether you live together or not, you are still married. A Separation Agreement defines certain aspects of your relationship. It may lay out custody and parenting arrangements. Perhaps you want to define who pays for what and who gets what. There may be specific issues you want to deal with or it may be every parenting and financial aspect of the marriage — getting ready for divorce. You may want to not be liable for your spouse’s debts — that is often the reason for a Separation Agreement. Sometimes a couple just needs a little space from each other. They want to live separately but are both hoping that the marriage can be repaired. They want to define what that relationship will be.
A Separation Agreement can also be the grounds for divorce. Live more than one year separate and apart and carry out all the obligations required by the agreement. Then, after that year, that can serve as the grounds for divorce. Since we now have what is effectively no fault divorce in New York that is no longer necessary.
The real question in preparing a Separation Agreement is — what is your goal? What are you trying to accomplish? You may be seeking to settle all matters between you, so that if you do divorce the Separation Agreement has covered everything. Just file the divorce papers — it is all already worked out. You may simply be seeking to establish some ground rules concerning things like money or parenting time, whether living together or apart. In that case a Post-Nuptial Agreement might be what you actually need. A Post-Nuptial Agreement deals with a limited number of issues, and is usually for a couple who will continue to actually live in the same residence.
As you can see, there are many different approaches and uses for a Separation Agreement. Give us a call to find out more.
To learn more about a Separation, read this article.