Separation Agreement: What’s Involved (and Not)

You may be in that place where …Something has got to change. You can’t keep living in your marriage the way it is. Or your spouse has said something: he doesn’t want to be married to you anymore. But he’s leaving it to you to do the hard things (as usual) … to figure things out, how you will change things legally and financially, how you will split up your lives. It’s not what you want to do, because you are rollercoastering through your feelings of anger, shock, sadness, regret, and maybe, even love.  But you know you can’t stay dwelling in your heart space right now. If this is going to happen, you need to be educated and think about your best economic future. You must figure out if this is going to be a separation or a divorce; what’s the difference? … And what’s inside those agreements?

What is the difference between a separation agreement and a divorce agreement?

This is a very normal question, because the differences and similarities between the two can be very confusing.

Separation agreements are private and voluntary agreements that two parties enter into before they start living apart from one another or while living apart. The parties will still remain legally married after signing the agreement. Separation agreements usually address the same terms that a divorce agreement covers. This includes:

• The resolution of financial issues such as spousal maintenance
• Child support
• Equitable distribution
• Debt allocation
• Custody and visitation.

Why would some people choose a separation agreement instead of a divorce agreement?

1. Emotional, Cultural & Religious Reasons:

Separation agreements can be a “softer” precursor to a divorce down the line, or they may provide the parties with time to live apart and determine whether they wish to get back together, remain living apart, or eventually divorce.  Some individuals have religious or cultural reasons that may prevent them from wanting to entirely pull the plug on the marriage while still wanting to ensure that some contract protections are put in place. Some may feel like a divorce is a stigma and prefer to work on things.

2. Timing the Legal Perks of Marriage & the Potential Expiration of Those Benefits: 

Some people may have legal benefits or “perks” tied to the status of their marriage that they do not want to lose. For example, social security benefits kick in after being married for ten years. This is a legitimate reason to want to postpone the commencement of a divorce. Some U.S. government and military employees receive better housing and medical benefits if they maintain a “married status.” Some individuals may want to stay married for a longer period of time for immigration status purposes. Most importantly, separation agreements can provide more flexibility than a divorce agreement and can offer a strategic timing advantage if utilized correctly.

It is important to note that during the separation process, the parties remain legally married and can continue to access marital benefits such as filing joint tax returns and remaining on each other’s health insurance plans.

After a Separation Agreement is signed, the parties cannot remarry because they are still legally married. (One caveat: While a divorce process is pending and not fully resolved, the parties may also stay on one another’s health insurance policy and file joint taxes until the Judgment of Divorce is signed and entered by the clerk.) It is only after a Judgment of Divorce is entered with the court that any party can legally remarry.

Keep in mind that the Separation Agreement becomes binding once both parties sign it and have the document notarized. It does not require a judge’s signature or court filing. (However, in New York, you may file it with the county clerk if you wish to.) If the parties decide to later “convert” the Separation Agreement into a divorce, they would then need to file the Separation Agreement with the Court.

Read the “55 Must Do’s on Your Modern Divorce Checklist.”

How Separation Agreements Work in Your State

Different states have different rules regarding separation agreements. In New York, where I practice, you can enter into a separation agreement and must live apart for a minimum of one year. You may also be separated for longer than one year. After a year in New York, you can then ask the Court to “convert” the separation agreement into a divorce agreement. Under New York’s Domestic Relations Law §170(6), you can seek a “conversion” divorce, but in order to do so, you need to first have a valid Separation Agreement that is fully executed (signed and acknowledged by the parties) and second, the parties must have substantially complied with the terms contained within the Separation Agreement. “Substantial compliance” with a separation agreement permits some latitude, and a future divorce will not be denied due to trivial non-compliance with the agreement.

Read “How to File for Divorce in My State.”

How long does a Separation Agreement take? Can it be done without a lawyer? Is it wise?

The answer is that it can take as long or as short as possible depending on how quickly you and your spouse can come to agreement on all of the terms for the Separation Agreement. You can draft a Separation Agreement without an attorney. But it is not a good idea to do so because, similar to a divorce, there are substantial rights and responsibilities that both parties should fully understand before entering into any agreement.

Much like a divorce, utilizing a mediator or attorney is preferable because there are the same legal implications during a separation as a divorce regarding custody, visitation, marital debt, equitable distribution of assets, health insurance, child support, and spousal maintenance. A separation agreement and the separation process (much like a divorce) will impact you and your family for the rest of your lives, so ensure that you have all information needed to make good decisions prior to entering into any agreement.

Read “Should You Seek a Separation or a Divorce?”

Who are good candidates for a separation and who are not good candidates for it?

Anyone can pursue the separation option but realistically as an attorney, I rarely recommend a separation agreement unless there is an honest chance that the parties may wish to get back together in the future or there is some other legitimate legal reason to delay involving the “legal perks” of marriage outlined above.  Because even an uncontested divorce can take time. The majority of couples (not everyone) prefer to move on with their lives and proceed to a divorce sooner rather than later. Not all states require a waiting period after entering into a separation agreement, so check your states statutes for additional information to ascertain whether a waiting period exists and the specific requirements involved with execution of a separation agreement as it relates to divorce.

NOTES

About Meredith: A zealous advocate for her clients, Meredith L. Singer is an experienced NYC divorce attorney who strives to keep legal representation affordable and accessible.

If you live in New York City or Brooklyn, schedule your legal consultation with Meredith by emailing her at meredithsingerlaw@gmail.com

You can also visit her website here.

 

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