Many times a client will explain that he or she wishes to be “separated” from their spouse instead of being divorced. Attorneys should not be putting themselves in a position of acting like a social worker or therapist and attempt to persuade the client to go forward with a divorce instead of a separation. However, it is important that the attorney ask the client certain questions to make sure that the client understands what a “separation” in Nassau and Suffolk counties means, as the term is often misunderstood by lay persons. Often, after the client is educated on the legal effect of a separation, that client may decide that divorce may be the best alternative and not the separation.
Generally, to be separated in Nassau and Suffolk counties in New York, married persons must become parties to a “separation agreement.” At its core, a separation agreement is a contract between married persons which acts among other things, to terminate the future financial intertwinings of the parties arising from their marriage, divides property, establishes child support, spousal support, allocates marital debt, establishes child custody and parenting time between the parties, addresses disposition of the marital residence, terminates statutory rights of one spouse to inherit from the other and divides retirement assets. Separation agreements set up boundaries and limitations between the two parties so once the agreement goes into effect, the parties no longer accumulate marital property and are free to live separate and apart as if they were single, although they remain legally married.
Separation agreements are negotiated contracts between married persons. As the foundation for negotiation, parties must exchange financial information with each other in a process called “disclosure.” Disclosure is intended to insure that each party knows the nature and extent of the assets and liabilities in the name of the other party. This is especially important when it comes to the division of retirement assets accumulated by either party during the marriage.
This requirement is similar to what parties must do if they were getting divorced instead of separated. A separation agreement in Nassau and Suffolk counties must comport to the requirements of Domestic Relations Law section 236B. A separation agreement is not merely an “ordinary” contract; it is a contract between married persons who, under New York law, are held to have the highest fiduciary duty (duty of trust) towards each other.
When parties enter into a separation agreement as opposed to being divorced, they may remain on the other party’s health insurance plan, the parties may continue to file joint tax returns and depending on the particular insurance company involved, may be able to continue with “family” discount car insurance coverage and other advantageous arrangements which exist due to the parties being married. This is because after a separation agreement is executed by the parties, they ARE still married.
In the future, should one party wish to become divorced, that party may do so. The parties’ previously executed separation agreement then becomes the “settlement” agreement for the divorce, which would most probably proceed without the need for any court appearances on an “uncontested” basis.
If either or both parties to a separation agreement ultimately choose to divorce, preexisting separation agreement does not get renegotiated. The separation agreement remains a binding contract between the parties and once the divorce becomes final, that separation agreement also becomes enforceable through Order of the Court.
To better understand the law of Separation Agreements in Nassau and Suffolk County and how your particular facts and circumstances could impact this important issue, you are invited to contact Robert B. Pollack, Esq., principal attorney of The Pollack Law Firm, P.C.
The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.
By The Pollack Law Firm, P.C. : Divorce and all phases of matrimonial law, family law and mediation
DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter.