A separation agreement can be achieved after the successful negotiation between spouses is completed. The main components of a separation as pertaining to a potential future divorce action are equitable distribution, spousal support, child support, child custody, and parenting time. The separation agreement is not signed by a judge, but it is recommended for it to be filed with the county clerk where either party resides.
Entering into a separation agreement, and living separate and apart pursuant to the terms of the agreement for at least a year, provides for a basis to obtain a divorce pursuant to New York’s Domestic Relations Law 170(6). In addition to filing the separation agreement in the county where either party resides, the documents must be signed by both parties before a notary. Because the Separation Agreement may be sought to be incorporated in the Judgment of Divorce by a party, in whole or part, it is important to discuss your rights and options with a qualified matrimonial attorney and divorce attorney before entering into such a contract as the terms may be binding on you unless you can later set out a prima facie case to vacate the entire agreement or a provision of the agreement. In addition to all the above issues pertaining to custody, support, and the division of personal and real property, there are other important tax issues, division of retirement assets, and valuations that should also be discussed with a qualified matrimonial attorney and divorce attorney before entering into such an agreement. Even if the terms of the agreement are not sought to be incorporated, the agreement may be used as evidence in a subsequent divorce proceeding.
Our divorce attorneys at Rubinstein, Zeh and Associates are experienced in discerning potential outcomes should your separation agreement turn into a matter that will be heard and decided by a judge in a divorce proceeding. We will assist you in resolving contentious issues through negotiation when possible to avoid the cost of litigation. Where negotiation is not possible, our divorce attorneys are adept litigators and will advocate your position vigorously before the court to reach your objectives. We represent clients in negotiating separation agreements and resolving contested divorces in Nassau County, Suffolk County, Queens County, Bronx County, Westchester County, Richmond County, Manhattan and Brooklyn Kings County New York.
Divorce * Uncontested Divorce * Contested Divorce * Custody & Child Visitation Rights * Child Support
Equitable Distribution * Prenuptial Agreement * Postnuptial Agreement * Order of Protection
Separation Agreements * Alimony & Maintenance * Spousal Support * Appellate Practice * Adoption
With the advent of no-fault divorce in New York, spouses are entering into Separation Agreements at a decreasing rate. Prior to the passage of no fault, a party would have to prove fault by making out a prima facie case for a particular ground, such as adultery, cruel and inhuman treatment, constructive abandonment, etc.: living separate and apart pursuant to a separation agreement, in the past, was a less costly and made it easier to proceed with a divorce.
Separation agreements still do have value for some couples contemplating divorce. Many of the benefits are financial in nature. A Separation Agreement can assist parties mitigating financial risk. For example, a separation agreement can provide for individual liability of debts incurred subsequent to the signing of the agreement or other types of potential legal issues. The agreement can also call for indemnification should a creditor seek action against the non-debtor spouse. An agreement is also important for the preservation of marital assets, which could be dissipated. For example, without an agreement, one spouse may sell real property or raid their 401K or 403b account. A separation agreement can address the use of such marital assets that typically may be accessed and used without permission of the other spouse. Other benefits of remaining legally married, although living apart, is the ability for the party to avail themselves of one another’s health benefits and capitalizing on the potential tax deduction for filing joint tax returns.
At Rubinstein, Zeh & Associates, we have the experience required to assist you in formulating a separation agreement that will meet your needs. We will educate you on your options so that your separation agreement is not only comprehensive, but afford you the protection that you need during the time that you are still married, but living separate and apart from your spouse.
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Having the right quality lawyer on your side can make a world of difference in a divorce case in New York. Although it requires you to make a lot of decisions that will have a huge effect on the rest of your life as it changes, finding a lawyer who will work with you, understand your wants and needs, and help you understand how the law can work in your favour can lead to positive results with your divorce.
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