As Taylor Swift once said, “we are never getting back together, like, ever.” Unfortunately, this is the reality for approximately 50% of all married couples. That is because approximately 50% of all marriages end in divorce. We previously posted about the Key Components in Litigating your Divorce and detailed the framework of what the divorce process looks like. But what happens if you are not ready to move forward with the divorce process but are not happy in your marriage?
In New York, spouses can enter into what is referred to as a “separation agreement,” which is a written agreement that allows spouses an opportunity to resolve certain marital discord while also giving spouses the opportunity to live separate and apart from each other, all while remaining married. This can and is often done without court intervention, which saves time and money.
You may be asking, why do I need to enter into a separation agreement? Can’t I just move out and be considered separated from my spouse? The technical answer is yes. But from a legal standpoint, this may not be the wise choice. Let’s say you and your spouse are having difficulty in your marriage and decide to separate. Your husband moves out and establishes his own residence outside the marital home. While separated, your husband incurs a hefty credit card debt. After some time being separated, you decide to file for divorce and are shocked to learn that you may be responsible for the credit card debt your husband incurred during your period of separation. You are also shocked to learn that your husband may be entitled to the Florida vacation home you purchased with your income after he moved out. This is because this debt and the vacation home continue to be considered “marital property” under New York law subject to equitable distribution in a divorce proceeding.
These types of problems can all be avoided by entering into a separation agreement. A separation agreement can resolve issues like child support, maintenance (or spousal support), custody and parenting time, division of property, property acquired after the date of separation and the like. In terms of the hypothetical above, it can set forth terms that will prevent a spouse from being held responsible for credit card debt incurred after the date of separation or protect a vacation home purchased after the date of separation.
The beauty of a separation agreement is that although it prepares spouses in the event of a divorce, it is not a final and binding divorce decree. Meaning, if the spouses decide to get back together, they can do so. In certain instances, separation agreements become void when the spouses begin living together again and intend on reconciling. This is of course subject to the terms of the agreement you sign as some agreements may expressly provide that you can only void the separation agreement by executing another instrument expressly invalidating the prior agreement. Clearly, every separation agreement is different and depends on the desires and needs of the individual spouses.
Any person contemplating entering into a separation agreement or seeking advice on how a separation agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at firstname.lastname@example.org or email@example.com.