Whether you are starting a family or resolving a separation, there is always the option to form an agreement that anticipates or resolves important matters. Our firm has experience forming and negotiating these agreements. Let us help form an agreement that protects your rights and addresses all concerns.
A Marriage Separation Agreement is a legal document prepared by spouses who are contemplating a divorce and have reached an agreement to separate, regarding how their property, assets, debts and other marital estate will be divided or handled. This Agreement can also be used to define child custody, visitation and child support if the parties have minor children.
Generally, a separation agreement is the result of much discussion and negotiation surrounding divisions of assets and liabilities and any support, maintenance, custody or visitation issues. If you are going through a divorce or separation, using mediation for these discussions and negotiations can be very helpful. Note that if you and your spouse agree on a resolution to all of the main issues in the separation agreement without the use of attorneys, you may be able to save money and use Expeditious Paralegal Services. This might be a possibility in less complicated separations, such as those couples who can get along despite their failing marital relationship or those who make good use of mediation.
Separation Agreements are ideal for couples who have separated and may not ready to file for divorce or legal separation. For those couples that are living separately, but have not decided to permanently separate in the form of a divorce, a Separation Agreement can formalize the separation and help protect each spouse’s interests.
Often couples cannot afford to wait for a divorce to make it through the courts to divide their assets. Deciding who gets the car, and whether to sell the house, are often critical to the livelihoods of all involved. A Separation Agreement will allow you to deal with these issues quickly and easily. This can be completed for a fraction of the cost that a lawyer would charge to draft a similar document, if you choose to use Expeditious Paralegal Services. More helpful information can be found below.
Contents of a Legal Separation Agreement
A Legal Separation Agreement should be as clear as possible when outlining the division of assets and debts. Consider including division of the following in your Separation Agreement whether owned jointly or separately:
Other Real Property: Any land, homes, buildings or other permanent structures.
Financial Accounts: Any banking, savings, credit union, or investments.
Retirement Accounts: Any employment, government, military or planned investment retirement accounts.
Vehicles: Any cars, trucks, vans, motorcycles or other motor vehicles.
Sport or Recreational Vehicles: Any ATV's, snowmobiles, jet skis or other recreational vehicles.
Life Insurance: Any life insurance policies owned by the parties regardless of who the policy is insuring.
Divisions of Household Items: Any furniture, appliances or other household goods of significant value.
Personal Property: Any jewelry, family heirlooms, collections or other personal items of significant value.
Debtors: Any person, company or entity who owes money to the couple.
Business or Corporation Interest: Any business or corporation the couple owns any interest in, including stock or shareholder rights.
Mortgages: Any home loans on real property owned by the couple.
Credit Card Debt: Any credit card debt, charge account, or other revolving credit accumulated by either spouse.
Auto Loans: Any vehicle loans either spouse is obligated to pay, including any loans with cosigners.
Bank or Credit Union Loans: Any bank, credit union, or other loan taken out by either spouse.
Credit Cards in a Legal Separation
Any and all credit card debt should be divided in this agreement without regard for when the debt was incurred. When dividing credit card debt you should consider whose name is obligated on the card and why the debt was incurred. Keep in mind that any joint debts will need to be transferred in order to remove the other party from the obligation if one party agrees to assume the entire debt in this agreement. If both parties' names remain on the account the credit card company can pursue collection from either party as they are not bound by this Agreement.
Debts in a Legal Separation
Any and all debt accumulated prior to, during the marriage and after the date of separation should be disclosed in this agreement, including any credit card debt, bank loans, vehicle loans, mortgages, promissory notes, etc. Many states will also require a Financial Affidavit or other formal financial disclosure. Including all this information in the Agreement is necessary to clarify how division of the debts will be handled.
Important: Third parties, such as credit card companies or financial institutions are not bound by this Agreement. If both parties to this Agreement are currently obligated to pay the debt and the parties agree that only one person will be responsible for paying it after the legal separation is final, any such credit card company or financial institution may still have the right to bring suit against the party that was independently released from the obligation by this Agreement in the event the responsible party defaults. For this reason, any joint debts that will become the sole responsibility of one party should be refinanced or otherwise transferred to the responsible party.
Assets in a Legal Separation
Assets are any items owned by the parties that have value, such as a home, cars, furniture, paintings, etc. When a couple decides to legally separate and contemplate a divorce, all marital assets should be listed and divided. It is not necessary to list and divide every piece of silverware or other small items specifically. Only include items of significant value such as family heirlooms, portraits, antiques, furniture, appliances, etc.
Spousal support is a set amount of money paid to one spouse by his or her ex-spouse. Spousal support is common in long-term marriages of 10 years or more where one spouse did not work or made substantially less than the other spouse. The principal behind spousal support is to allow both spouses to maintain a similar lifestyle to what they were accustomed to prior to the legal separation. A few examples of situations warranting spousal support are below:
Sam and Sue were married 15 years. Sue is a homemaker who does not have a college degree and has only held part-time jobs outside the home once the parties' 4 children were all in school.
Derek and Diane were married 20 years. Diane is a stockbroker who makes $500,000 per year. Derek is a teacher who makes $60,000.00.
Spousal support can be paid for a lifetime or for a set number of years (rehabilitative spousal support). The parties should thoroughly consider the acceptable amount of support. Unlike child support, there may not be a set formula for calculating spousal support in your state. You should contact your County Clerk for clarification.
Health and Medical Insurance during Legal Separation
In many states, the separating spouses can remain on the same insurance policy after a formal legal separation is granted. The primary insurer or holder of the insurance policy should be careful when making any changes to the existing policy during a legal separation as some states will not allow you to remove a spouse from your plan during a legal separation without their consent. It is common for a spouse to continue to pay for health and medical insurance for the other spouse if it is available to them through their employment or some other means. However, spouses may also decide to remain on the same policy and divide the cost of the premium during the legal separation. The parties can use the legal separation period as time for either or both spouses to assess the cost of individual coverage plans. It is important to remember if the parties decide to convert their legal separation to a divorce, they will likely be unable to continue to remain on the same insurance policy. You should contact your insurance provider for more information and detail in this regard.
Name Change after Divorce
It is common for divorcing spouses to change their name back to their original birth name after the divorce is final. It is important to consider if either party would like to change his or her name and include this desire in the Marriage Separation Agreement in the event the parties proceed with an action for divorce. The language in this agreement will not require you to change your name but will allow it in the event you decide to make the change at a later date after a final divorce decree is issued. Many individuals with children choose not to change their names while they have minor children.
Tax Issues in a Legal Separation
If the parties are filing for legal separation when they have not yet filed the previous year's taxes, received their refunds or paid their tax payment, they should clearly outline in the agreement how these payments will be handled. In addition, any stimulus payments should be divided in the agreement, as the payment will likely be deposited in the account where any tax refund was deposited. For example:
Derek and Diane filed a joint tax return for their 2016 taxes and believe they will receive a refund of $1,200.00. Derek will be entitled to the full amount of this refund. In addition, the parties need to clearly state how they intend to file future tax returns during the legal separation. Sam and Sue agree to file a joint tax return for the 201 tax year and equally divide any refund or equally pay any taxes owed.
Signing and Filing the Legal Separation Agreement
The Legal Separation Agreement must be signed by both parties in front of a notary public. Once the agreement is executed, it must be filed in the proper court as part of a legal separation action. Your legal separation will not be final until a judge has reviewed your Legal Separation Agreement and issued an order or judgment for the legal separation. There is no guarantee the terms of your Legal Separation Agreement will be accepted by the judge. Each judge will use his or her discretion in assessing the reasonability, fairness and acceptability of your Agreement. To ensure the best chances for success in having your agreement approved, you should ensure that all provisions included in the Agreement provide for a fair and reasonable settlement for both parties.
Pre/Post Nuptial Agreement
While many people do not give much thought to making a prenuptial or postnuptial agreement, these agreements can provide predictability and minimize disputes within a marriage. They can also assist in the estate planning process.
A prenuptial agreement, a premarital agreement and an ante nuptial agreement are all interchangeable terms used to describe an agreement between parties contemplating marriage, which defines how they will protect and preserve their financial affairs during the marriage, in the event of a future divorce and/or upon the death of one of them. Every pre-nuptial agreement is unique, because the circumstances behind every marriage are unique.
Castro C.L.A.N. has the background and experience necessary to help you prepare a prenuptial agreement. These agreements can be important when one or both partners:
Have significant assets
Have a business or professional practice
Wish to protect assets for children of a prior marriage
Anticipate a sizable inheritance in the future
Why Get a Prenuptial Agreement?
There are many potential reasons for entering into a pre-nuptial agreement. A prenuptial agreement provides some predictability and minimizes disputes in the event the marriage later fails. Prenuptial agreements may also encompass the decisions made in estate planning, to provide some predictability in the event of a death of either spouse.
The parties can put a waiver or limitation of future spousal support into the agreement. If they do, that part of the agreement can be reviewed by a court. If the waiver or limitation is found to be unconscionable by the judge, the court can decide to award spousal support in the amount it rules appropriate. However, all other parts of the premarital agreement would be likely left intact.
While many things can be included in the agreement, some things, such as future child support, may be difficult or impossible to include.
Domestic partners or couples who live together without being married may want a formal agreement to avoid later misunderstandings or disputes about their financial obligations to each other, the treatment of jointly acquired assets and other issues. These agreements are equally important when there are same-sex unions or civil unions involved. Expeditious Paralegal Services has prepared cohabitation agreements for a number of affluent citizens, and people of more modest means who simply want to provide some predictability for themselves, their partners and their financial futures.
What Is a Postnuptial Agreement?
Even if no prenuptial agreement was prepared prior to the marriage, parties sometimes want to formalize agreements as to assets, liabilities and the like during a marriage even though no divorce is anticipated. Those agreements are commonly called marital or postnuptial agreements.
Anything that can be included in a prenuptial agreement can be included in a postnuptial agreement after the couple is already married.
Such an agreement might be appropriate if one party contemplates a risky business venture and the other spouse does not want to share in that risk. Such an agreement is also sometimes used to formalize commitments as to financial planning.
Castro C.L.A.N. is prepared marital agreements for a number of do it yourself type individuals who want to provide predictability for themselves, their spouses, and their financial futures.
Some reasons to get a Post Nuptial Agreement
A post nuptial agreement may serve as protection against a spouse that has wronged you in the past. This is for those who want to work on a relationship, but are afraid of having to start from scratch should things fall apart.
One partner is in the dark about finances and can feel as an equal only by having full knowledge of the other's assets.
Individuals entering their second or third marriages who have children from prior unions, who want to make sure that their assets go to their respective children or parents or another beneficiary can benefit from a postnuptial. Even couples entering into their first marriages likely bring with them more worth than in the past, as the age of first-time brides and grooms continues to rise.
A postnuptial may be helpful to those that didn't get around to the prenuptial. Who wants to ruin the love and romance of the first wooing, and the run to the altar? Sometimes couples just don't get around to it, or are unable to complete a prenuptial in the process. So a postnuptial agreement is the logical follow-up.
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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