What is a Separation Agreement?
A separation agreement is an agreement between a husband and wife which sets forth the terms and conditions of the separation. Once signed, it becomes a binding contract between them. The separation agreement will resolve matters such as division of assets (marital residence, pension, 401(k), retirement accounts, etc) and debts, child custody and support. A separation agreement must be voluntary. A separating spouse cannot be compelled to sign one. An “agreement” means that both parties sign voluntarily. Coercion, fraud, undue influence, or lack of knowledge are some of the conditions that will void the terms of a separation agreement.
What can a Separation Agreement do?
A Separation Agreement can let you settle many of the issues relating to the marriage. You can divide the property between the parties (though you may have to re-title some property (automobiles, bank accounts, investment accounts) so that the transfer is legally effective. You can allocate responsibility for joint debts arising from the marriage However, this is only effective between the husband and wife, unless you can get the lender to release one party, the lender can continue to look to both the husband and wife to repay the debt.) A Separation Agreement can also resolve issues involving child custody and child support. Most separation agreements contain a clause that allows each spouse to be left alone as if single and unmarried and that forbids each spouse from harassing, molesting or interfering with the other.
What can’t a Separation Agreement do?
Since it is a contract between spouses, it cannot bind third parties (such as banks or finance companies) that have not signed it. Thus if the Separation Agreement requires that the husband pay for the car loan that is in both names, the wife remains liable for that loan unless the lending company releases her from that obligation. If the husband does not make the payments, the wife will still be responsible for the payments. A Separation Agreement cannot bind the court in areas relating to child custody and child support. The court will always look out for the best interest of the child and will be able to adjust the terms of the Separation Agreement to insure that the child’s best interest are protected.
Can I change the terms of the Separation Agreement?
Since the signed Separation Agreement is a contract, the husband and wife are free to renegotiate the terms of the Separation Agreement. However, it can be modified only if both parties agree to the new terms. Of course, a court can always order changes to the Separation Agreement, especially in areas affecting children such as child custody and child support.
What happens to the Separation Agreement when I get divorced?
In New York State, the Separation Agreement will be incorporated, but not merged, into the final divorce judgment. If this occurs, the terms of the Separation Agreement will be treated as if they were a part of the court order.