- Separation Agreements
- Prenuptial Agreements
- Child Support, Spousal Support and Child Custody Agreements
Separation Agreements are agreements between spouses that allow you both to decide everything you want to have happen with regard to your children, spousal support, assets and debts upon the failure of the marriage. A Separation can also be obtained by suing for separation, rather than suing for divorce, which one might consider if the other party is unwilling to work out a settlement and you do not want to sue for divorce at this time for some reason. There are grounds for separation, just like there are grounds for divorce, though such actions are extremely rare.
Separation Agreements require both sides to be willing to sit down and negotiate a settlement. After all, an Aagreement@ is exactly that. If one party is unwilling to agree, then there is no point in proceeding down this road. If both parties are willing to try to work this out without the intervention of the Court, then this is a much less expensive, both financially and emotionally, way to proceed. Just remember that you cannot force someone into negotiating with you.
Just like a divorce entails various issues, so does a separation agreement. In general terms, they allow both parties to live separate and apart without interference from the other, as if they are unmarried; they generally waive each other out of rights to the other=s estate which is a statutory entitlement. There is a disclosure of all financial information for each of the parties so that a fair and reasonable distribution of all assets can be made, just as there is in a divorce action.
A separation agreement should include not just the items specified, but determination of custody, visitation and child support for the child and children of the marriage; maintenance (alimony or spousal support), distribution of all marital property and debt. Please review the specific items on this site as to custody and visitation, child support and divorce. A separation agreement should do everything a divorce does, but for the divorce itself. Separation Agreements take the power away from the Court to make your decisions for you by making them yourself, though a Court will ultimately have to approve your agreement as being fair and reasonable.
An agreement can be drafted for certain issues that you agree upon, even if the balance cannot be agreed to. For example, you may be able to work out the issue of custody and visitation, so that you can make an agreement on that issue that you can submit to the Court to make it a Court order. Each issue that you can agree to and get approved by a Court will avoid your having to litigate that issue. Sometimes this can be an effective way to limit the issues to those that you really cannot agree to, and save a great deal in legal fees and emotional distress by doing it.
Keep in mind that these agreements can be challenged, or there are mechanisms to get a Court to modify them, just as an Order of the Court may be modified under specific circumstances.
If you are already involved in a divorce action, nothing stops you from working out a settlement in the middle of it. These are often called Opting Out Stipulations, rather a “short form” separation agreement, or a full separation agreement can be used for this purpose as well. Essentially, it is a separation agreement which is reached during any part of a litigation. It would incorporate everything that would be in a separation agreement, but often not the waiver of estate rights or right to live separate and apart.
This is just a brief overview of certain aspects of agreements which you may find helpful for informational purposes only. It is not intended as legal advice and does not establish an attorney client relationship.
These agreements address several different areas and it is important to keep in mind that they are simply contracts whereby you can create absolutely any terms you want that are not against public policy. Please view this as a mere overview of certain terms to include, but not a limitation on terms that you may include in such an agreement.
New York, though case law and statute, has created certain rules in upholding these agreements. Amongst those standards are the timing of the execution of the document. If the agreement is handed to the bride the night before the wedding with the threat of calling off the wedding if she does not sign, that speaks toward not upholding the agreement. That brings up another standard: threatening someone into signing the agreement speaks against upholding the agreement. The rule of thumb to use is if the signing of the document is manipulative and underhanded, then there may be a serious problem in a court upholding the agreement. Common sense goes a long way here.
These agreements generally encompass language by which the growth of one party=s pre-marriage assets do not become marital property or property over which the other party may have a future claim. The agreement, though, can also state that certain assets are shared, parts of certain assets are shared or that upon one party=s death (but not divorce), the asset goes to the other party, or many other possible divisions and protections.
Prenuptial Agreements are multiple purpose agreement: Who gets what in the event of a divorce and potentially who gets what in the event of the death of either party, dealing with estate rights, insurance and retirement benefits, business interests and a myriad of other things. Often there is a provision to somehow protect a non-monied spouse upon the death of the monied spouse by way of an insurance policy, or as part of estate planning within the document itself.
Young people, in the beginning of their lives and careers, too often believe that a prenuptial agreement is not necessary. All they own are the clothes on their back and their pick-up. They are wrong. The benefit and purpose of a prenuptial agreement is not just protection of what the parties own at that moment of execution of the agreement, but the protection of the assets that will accrue over the term of the marriage. In ten or fifteen or twenty years into a career, there is a great deal more on the line than those clothes and pick-up. Prenups protect your future wealth and each other’s debt as well as your already accrued wealth and debt.
Because the primary purpose of this agreement is to prevent a Court doling out a couples’ assets as they see fit, it helps to view this in terms of the standards a court uses to divide assets in a divorce. Your agreement may well set forth that certain items coming into the marriage will be marital property, and how, in the event of the end of the marital relationship, how the two of you want those assets divided. You may want to override statutory estate rights and statutory requirements for beneficiaries on various accounts to which your spouse would be otherwise entitled.
Prenuptial agreements are detailed documents that cannot be fully described in such a brief writing. Hopefully, this gives you some general information and food for thought. If you require services concerning prenuptial agreements, please email Diana@cunninghamrules.com
Child Custody, Child Support and Spousal Support Agreements
Rather than fight it out in Court with extensive legal fees for all parties, you can work together to come up with your own formal agreement. After agreement is reached, it can be approved by the Court and made a Court Order that can be enforced like any other Court Order.
Child Support and Spousal Support (Alimony) are determined by a numerical formula in New York. With the proper information for income and expenses, the parties can reach agreement through negotiations. With a shared custodial arrangement, the parties can determine what the fair number should be and why that number is fair. Certainly if the parties cannot reach an agreement, then the alternative will be to allow a Court to decide.
Child Custody agreements can be reached by putting the parents determination of time sharing of time between both parents. This would include all details needed such as a holiday schedule, exchange times, both parents’ access to the child or children’s records and myriad of things needed to avoid future problems for the child. This could include things such as no relocation of the child with permission of the other parent, school choices, daycare choices, religious upbringing or whatever else would be important to the couple and children. A Court will not put in all of the detail and protection you may wish for your child/children, whereas an agreement does allow all of the detail the parents deem important to parenting and to their child/children.
If this office may be of service in working within you in any of these agreements, please contact us, or call/text 315-565-2760 to set up free 15 minute phone consultation to discuss your needs.