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At Spodek Law Group – our one, and only, job is to help you understand your options, and get you the best resolution possible. Ending a marriage is a stressful process. It’s one of the worst things possible. Regardless of whether you’re the one initiating the divorce, or are at the receiving end of the divorce – it’s going to bring up a wide array of emotions to the surface. Often, our clients feel a wide array of emotions, ranging from shame, anger, anxiety, apprehension, to grief and guilt. This important change in your life, can totally change your relationship with those around you, and impair your judgement.
At Spodek Law Group – our one, and only, job is to help you understand your options, and get you the best resolution possible. Our team of divorce attorneys, and support staff, speak to each and every one our clients. You work directly with a competent NYC divorce lawyers, who can help you through this difficult process.
Spodek Law Group consist of a team of highly qualified NYC Divorce Lawyers. For your convenience, we have offices located in New York, Brooklyn, and Long Island. Our divorce lawyers specialize in divorce and family law with an expertise in negotiation, collaborative law, trial advocacy, prenuptial and postnuptial agreements, mediation, spousal maintenance, child custody, modifications, enforcement, and property division.
Spodek Law Group can help you in overcoming a difficult divorce with a strong emphasis placed on compassionate, comprehensive, and cutting edge legal representation. Our NYC divorce lawyers provides services throughout various areas in New York including but not limited to Manhattan, Brooklyn, Staten Island, Bronx and many other surrounding counties. With a combination of more than 60 years of experience in handling divorce cases in New York, our firm has helped hundreds of individuals through very difficult divorces.
Our team of NYC divorce attorneys, and support staff, speak to each and every one our clients. You work directly with a competent NYC divorce lawyers, who can help you through this difficult process. Spodek Law Group consist of a team of highly qualified NYC Divorce Lawyers. For your convenience, we have offices located in New York, Brooklyn, and Long Island. Our New York divorce lawyers specialize in divorce and family law with an expertise in negotiation, collaborative law, trial advocacy, prenuptial and postnuptial agreements, mediation, spousal maintenance, child custody, modifications, enforcement, and property division.
Divorce can be an extremely difficult time in a person’s life. It presents a number of challenges and concerns. Nobody ever said that going through a divorce would be easy, and some of the most amicable separations have the potential to quickly turn messy and bitter. Filing for a divorce often requires extra care due to the emotional aspect of it. Spoked Law Group is an accomplished New York Divorce Law Firm that offers expertise in divorce matters, and it is our goal to make the divorce process is as simple as possible.
When you are confronted with the difficult tasks of dividing marital assets, business assets, and negotiating child custody arrangements, it is beneficial to seek a NYC Divorce Lawyer who has years of experience and credibility in handling divorce cases in the state of New York. Our NYC divorce lawyers are skilled at aggressively negotiating acceptable divorce arrangements, child custody agreements, division of marital property, and bringing divorce cases to trial if the circumstances are warranted.
Spodek Law Group consist of a team of highly qualified Divorce Lawyers in NYC. For your convenience, we have offices located in New York, Brooklyn, and Long Island. Our divorce lawyers specialize in divorce and family law with an expertise in negotiation, collaborative law, trial advocacy, prenuptial and postnuptial agreements, mediation, spousal maintenance, child custody, modifications, enforcement, and property division.
Todd Spodek is a second generation attorney. At the Spodek Law Group, Todd is the managing partner, and is dedicated to improving the life of every single person he can. He uses the law, to help people improve their lives and avoid unfortunate problems that can harm their future, and their family. If you’re facing an issue – and need the best, talk to Todd.
Legal issues don’t wait – they strike at a moments notice – that’s why our NYC divorce attorneys are available 24/7 to help you. Regardless of when you call, one of our attorneys is available to help answer your legal issues, and offer a risk free consultation. Once you sign up with us, you have constant access to your assigned attorney for any legal issues you might have. We’re 100% dedicated to you – and your right to get legal help. Give us a call today, for a risk free consultation. The Spodek Law Group cares about one thing only: our clients satisfaction and the results we get for them. With over 40 years of legal experience, the Spodek Law Groups knows how to win cases, and how to get families the outcome they need. Clients consistently refer us to their friends and family members – because of this. Our goal isn’t to increase our billable hours – our goal is to ensure your families happiness.
The Spodek Law Group focuses specifically on trying it’s best to provide as much service, and meaningful results as possible, to each and every client. We have over 40 years of experience as law firm – and do our best to use that experience in order to make each client’s work with us easier and better. Regardless of the issue, or situation facing your family, we can help. We have experience handling virtually every single type of divorce and matrimony case – and believe passionately in being in touch with our clients every step of the way.
Spodek Law Group is one of the few firms in NYC to have over 50 five star yelp reviews. Many of the most popular rating platforms, like Google, Yelp, and Avvo – consistently rank us as a great law firm – with perfect reviews. We encourage you to read our reviews, and learn more about our firm. It proves you can trust us, and why you should work with us.
Spodek Law Group is one of the few New York divorce law firms that offers a flexible payment program. In addition, we charge extremely reasonable fees – which makes it easier for you to get the legal help you want – without having to worry about money. We firmly believe money should never stop you from getting the legal help you deserve.
Spodek Law Group consist of a team of highly qualified Divorce Lawyers in NYC. For your convenience, we have offices located in New York, Brooklyn, and Long Island. Our divorce lawyers specialize in divorce and family law with an expertise in negotiation, collaborative law, trial advocacy, prenuptial and postnuptial agreements, mediation, spousal maintenance, child custody, modifications, enforcement, and property division.
Child Custody Arrangements – For parents who are divorcing or unmarried, we will work hard to establish a parenting plan that is in the best interest of your child while protecting your parental rights.
Child Support – We are dedicated to ensuring that our clients receive or pay child support in an amount that is fair and will ensure the financial stability of the children.
Alimony/Spousal Support – Our NYC divorce attorneys handles all areas of debt and property division, alimony payments, and many other financial matters relating to a divorce.
Post-Divorce Modifications – Our NYC Divorce Lawyers are very knowledgeable in handling post-divorce modifications for time-sharing, alimony, custody, support, or any other court order that needs to be modified due to changes in circumstances.
Relocation of Minor Children – We will work with the custodial or noncustodial parent, who is concerned about the minor child’s proximity and having access to the child.
Same Sex-Marriages – Our NYC divorce attorneys also have experience in handling same-sex divorces in addition to same-sex prenuptial agreements. In 2011, New York legalized gay marriages. The Marriage Equality Act was then passed by the state Senate. This has allowed many same-sex marriages to exist, and it has also expanded the area of family law.
Uncontested divorce – If neither party is contesting the divorce, an uncontested divorce will probably work for you. In many uncontested divorces, a settlement agreement is an ideal option. Even if your divorce is uncontested, it is still important to have legal representation to protect your rights and ensure fairness while moving through the legal process
In the early days of divorce law, couples seeking to end their marriage had limited legal recourse. Adultery and physical abuse were often the only grounds that could ultimately lead to a divorce. Today, the standard for ending a marriage is not so high, which allows couples to end a relationship that is no longer working and gives the parties an opportunity to find happiness apart that they no longer found together.
If you are considering divorcing your spouse or your spouse has already filed for divorce, this should help you to understand what the grounds are for seeking a divorce in New York City (and New York state).
1. Irretrievable Breakdown: This is the newest ground for divorce in the New York law, and the most lax in what you or your spouse would need to prove to receive a divorce. If you or your spouse claim “irretrievable breakdown” in the marriage, that is a statement that claims the relationship between you and your spouse has broken down in a way that it cannot be repaired and it has been in this state for at least six months.
Along with this six-month requirement, there are other restrictions on this ground for divorce. As it is new, any claims for divorce filed before October 12, 2010, do not qualify to use “irretrievable breakdown” as part of their claim. For those filing on or after October 12, 2010, you should be aware that this divorce cannot be granted for this reason until after issues regarding spousal support and property, as well as custody, visitation and child support have been settled between you and your spouse or decided by the court.
2. Abandonment: This reason for divorce seems largely self-explanatory. If your spouse has left you or kicked you out of your marital home with no intention or returning or allowing you to return, you could obtain a divorce on this ground. You must be apart for at least a year.
New York law also allows for a less intuitive form of abandonment. Though not in the divorce statute, the courts in the state have found that a spouse may be abandoned, even while still sharing a home with their husband or wife. Your spouse may “constructively abandon” you by refusing to have sexual relations for a year prior to filing for the claim.
3. Cruel and inhuman treatment is behavior by a spouse that would place their husband or wife’s health–either physical or mental–in danger if the couple continued to live together. This treatment must be relatively recent, however. If your spouse has not been abusive in more than five years, you will not be able to use this ground for divorce.
4. Adultery: Unsurprisingly, if your spouse has an extra-marital affair, you can file for divorce on this ground. Like cruel and inhuman treatment, your discovery of the affair must have happened within the last five years, though the affair itself could have happened at any time. You must also have a witness who can testify to prove your spouse’s adultery to the court, as New York law will not allow you to testify to prove your spouse’s adultery.
If you claim adultery as a ground for divorce, the court will also look at your actions. The court will not permit a divorce on the ground of adultery if you encouraged your spouse or committed adultery yourself. Also, if you forgave your spouse and had sexual relations with them again after you learned of their affair, you will also be prevented from seeking a divorce on this ground.
5. Imprisonment: The courts will allow you to seek a divorce if your spouse is incarcerated for three or more years. You may even divorce your spouse after he or she is released, as long as the release happened within the last five years.
6. Judgment or Decree of Separation: The court may issue a Judgment of Separation or Decree of Separation. These judgments will have a number of conditions that you and your spouse must obey for at least one year. For instance, you will likely be ordered not to live together. Obtaining a Judgment of Separation or Decree of Separation is rare for most divorces, since it requires proof similar to a divorce. Many couples seeking to divorce generally choose to divorce, instead.
7. Separation Agreement: This is one of the most common grounds for divorce. Rather than seeking the court’s decision on the separation, you and your spouse may have an “Agreement of Separation.” This agreement should be written and you and your spouse will have to separate, not live together, for at least a year. for the agreement to be valid, it should be signed by both you and your spouse and notarized. Like the Judgment of Separation, you should obey all the conditions in the agreement.
Going through a divorce is a difficult time for anyone. When you and your spouse have decided that you’re unable to repair your marriage, you’re most likely ready to move on with your life independently.
If you’ve decided it’s time to move out of the home before your divorce is finalized, you’re going to want to take some personal belongings with you – including some items that you may share custody of with your spouse. This can cause complications during the divorce process.
So what should you do if you’re preparing to move out of your home before your divorce is finalized and what can you take with you? This guide can help answer those questions and more.
Why You May Want to Reconsider Moving
Living in a home with your soon-to-be-ex spouse can be a challenge for just about everyone, but packing your bags and heading out can actually cause more problems than you think. Before you move into a new home, you may want to consider what it means for you, your spouse, and your children.
First, if you choose to move, you will need to pay for both homes. If you are the main breadwinner for your family, the court may order you to continue paying the bills at the home that you left. Additionally, if you have a mortgage to pay, you will be required to meet those payment deadlines even if you’ve moved out of the house.
Leaving the home can also influence the amount of time you get to spend with your children. Packing up and leaving without a proper visitation schedule could mean missed opportunities to spend time with your children.
If you still believe that moving out is the best way to go, you will want to speak with your divorce attorney about what that looks like and what it could mean for your divorce. An experienced divorce attorney can assist you through the process and ensure you’re protected.
What Belongings You Can Take with You When You Move
When choosing which items you are going to bring with you when you move, you need to carefully consider what you can legally take. Not all of your items in your home are entirely your possession so taking something that does not belong to you could get you in trouble with the court.
To best ensure that you can take certain items with you, you should talk with your spouse about what you would like to take and get their permission. Having a conversation about what you’re going to take with you will ensure you will not get in any trouble for taking items with you after you leave.
If you and your spouse are unable to communicate or you cannot come to an agreement, you are legally allowed to take any item that is exclusively your own. This includes items that were paid for with your own income. If your spouse paid for the item or you used your spouse’s income to pay for the item, you will need their permission before you leave with it. This also includes cars.
This can make it difficult for individuals who did not work to leave. If you were a stay at home wife or husband, there may be very little that you will be able to take with you when you move out. Keep this in mind when you consider whether or not moving out is the right decision for you.
You should also consider if the item is truly necessary to take with you before the divorce is finalized. If there are items that you would like but you don’t necessarily need right now, you may benefit if you simply leave them be until you receive ownership of them through the divorce process.
Before you take anything from your home, talk with your divorce attorney. Your divorce attorney can help advise you on the best way to approach the subject and help you understand what consequences may come if you take an item that you shouldn’t have. Receiving legal counsel is always advised when you have questions about divorce.
There are three types of attorney fee arrangements commonly used in the United States, and many other countries around the world. These are a contingency fee, a flat fee, and an hourly fee.
Information About Attorney Fee Arrangements
As a general practice, if a contingency fee arrangement is used, no fee is paid until a settlement or judgment is obtained in your favor. This type of fee agreement typically is used in personal injury cases.
A flat fee involves the payment of one fee amount, usually at the commencement of a case. The flat fee is all that you pay for legal services. Flat fees are used in a variety of cases. They oftentimes are used in traffic, some family law, and some criminal proceedings. They are used in estate preparation cases at times as well.
Finally, an hourly fee requires a client to pay for legal services based on the amount of time a lawyer spends on a case. Most attorneys require a client to pay a retainer up front at the start of representation. A retainer is quite like a down payment, in this case for legal services.
Lack of Funds to Pay Legal Fees
You may find yourself in a situation in which you simply do not have funds available to pay attorney fees at this time. For example, you may not have enough money to pay a retainer in an hourly fee case. You may not have funds to pay the flat fee in a case. If that is the case, you need to explore what options may be available to you.
Fee Payment Plans
Some, but not all, attorneys will be willing to enter into a payment plan with you. You need to keep in mind, however, that if you fail to honor a payment plan, a lawyer will take steps to withdraw from your case.
If you want to have hopes of working out a payment plan with an attorney, you need to be upfront about your financial situation from day one. You need to advise the attorney of your financial limitations when you meet during an initial consultation.
If you are involved in a certain types of criminal cases, and cannot pay for your attorney, the court will appoint one for you. Keep in mind that not all criminal cases quality for the appointment of an attorney. If there is no chance for you to end up incarcerated, and if the charge truly is a minor one with minimal repercussions, the court does not have the duty to appoint counsel for you.
Family Law Cases
If you are involved in a divorce, or other type of family law case, the court does not need to appoint an attorney for you, as a general rule. However, in some communities, there are legal services available to you for a fee based on your income. In some instances, you may pay no fee. In others you will pay something of a more minimal fee based on your income. Even if there is a minimal fee based on your income, you are likely to be able to pay it over time.
Legal aid organizations and law school law clinic represent two different types of resources for free or low cost legal representation in some communities and in some cases. You need to bear in mind that these types of services are not available in many communities across the United States.
Schedule an Initial Consultation
The first step in understanding what options are available to you is scheduling what is called an initial consultation with a lawyer. Again, during this session, you need to be honest about your legal situation.
The reality is that a good many attorneys will not want to take your case if you are unable to meet their fee payment criteria. With that said, by doing your homework, and taking your time to find an attorney, you very well may be able to find a lawyer that will work with you on fee payments.
If you have a particularly interesting or compelling legal matter, even an attorney I private practice may consider taking your vase pro bono, or for no fee. As has been discussed, the key to obtaining leeway in regard to the fee obligation is being honest and straightforward upfront when coming to a lawyer.
Unfortunately, a divorce is not always amicable or civil, which leads to situations where you have to ask questions like this. It can be an emotional roller coaster on both sides of the divorce with each side throwing verbal bombs and threatening to toss the other person’s items in the street or the trash. Whether they are your belongings or ones that are considered part of the divorce is a situation in which the court must make a ruling.
There are plenty of aspects to consider with a divorce. In some states, there are community property laws that equally distribute a couple’s property in the event of a divorce. In cases like that, the court will frown upon one couple throwing out the marital property before it can be distributed properly.
Usually the spouse in the home wants the other spouse to remove all personal belongings, but it can be difficult to move from a large home to a smaller one with the same amount of belongings. It might make sense to remove the items before they get tossed. While he might not be able to do it legally, that knowledge won’t retrieve them from the city dump. Be careful what you remove from the home though. Some items might be considered a marital asset.
There’s no reason you can’t visit the property at any time before the divorce since the home is considered marital property. Some divorcing couples stay in the home until the divorce is finalized. If you’re not comfortable visiting the property alone, bring a trusted friend or family member with you to remove your belongings.
Violence in the Home
If he’s threatening to throw you and your belongings into the street if you don’t leave, you might be able to get a restraining order to protect yourself. You can’t be forced to leave the home unless there’s a reason. Your safety and the safety of any children in the home are important, and you can’t be made to leave with or without your belongings and theirs.
Talk to a NYC Divorce Lawyer
If you’re unsure of the steps you should take after the demand and threat by your spouse, a lawyer can help. He or she might advise you to pick up your belongings, or he might call your husband’s lawyer to have a discussion. In some cases, your lawyer may talk to the court about stopping your husband from removing assets from the home before the divorce is finalized.
If your soon-to-be ex-husband tosses your belongings out, he could be liable for the cost of the items and the loss you suffered as a result of his actions. It could be used against him in court too. The judge will not look favorably on him for throwing out your belongings especially when you’re in the middle of a divorce.
There are a few different rules that the spouses will have to abide by in the divorce, and one of those rules is that he shouldn’t be tossing your belongings out of the home. Until the divorce is finalized, the home is marital property unless there are extenuating circumstances. This is why you’ll need the advice of an attorney during your divorce. Only your attorney knows the exact details of your situation.
When you marry someone, you hope to have the same dreams and goals in regards to raising a family. Unfortunately, some people wait until after they’re married to find that they’re not actually on the same page. If you’ve been married only to learn that your husband does not want to have children, you may be feeling at a loss of what to do.
While no husband is required to have children, disagreements about having a family could be grounds for ending the marriage. However, you will want to know all your options before contacting a NYC divorce attorney.
Children are not a legal obligation of marriage.
Many people choose to get married in order to raise a family. While this is a dream for many people, having children is not a legal obligation of getting married. Many people get married and never end up having children.
If you’ve found that you’ve married someone that does not have the same beliefs for a family as you do, you’re not able to take legal action against them. If you cannot change their mind and convince them that children are the right decision, you cannot use legal action to force them to have children with you.
The only exception is if there was a prenuptial agreement that states your husband agrees to having children. Because most couples do not have a prenuptial agreement before getting married, it is not likely that you will have one when you discover that your spouse is not interested in having children.
Even with a prenuptial agreement in place, you still may not be able to force your spouse into having children with you. Because prenuptial agreements can be challenged in court, even that form of protection may not be enough.
On the other hand, you do not need to stay married to someone that does not want to have children if you do. The circumstances surrounding the situation will determine whether or not an annulment or a divorce is the right decision.
Should you get an annulment or a divorce?
An annulment is not always an option when looking to end a marriage. Because an annulment completely negates the marriage as if it had never happened, special circumstances need to surround the marriage in order for an annulment to be considered.
Not wanting to have children is not enough to have the marriage annulled. But if your spouse also refuses to engage sexually, you may be able to get an annulment. You may also be able to get an annulment if your spouse has maliciously withheld information about their capabilities of having children.
If you and your husband simply cannot agree on having a family, you are still able to get a divorce. Through filing a divorce because of irreconcilable differences, you are able to part ways and achieve your family dreams with other individuals. However, going through a divorce also means that you need to separate property and assets.
What if your husband is sterile?
If you’ve gotten married and found out that your husband is sterile, the situation may change. If your husband knew that he was unable to have children before he married you but he did not share this information, you may be able to get the marriage annulled.
If your husband did not find out until after the marriage that he was sterile or otherwise unable to have children, you will still need to follow the divorce process.
Contacting a Divorce Attorney
There are many disagreements that a couple will have throughout a marriage but the one about a future family can often have the most consequences. For some, raising children as a family is a huge dream while others may not want to have that lifestyle. Unfortunately, it can be extremely challenging to try and change the opinion of someone else.
If you and your spouse are unable to see eye-to-eye about what your future family may look like, you will want to consider hiring a divorce attorney. Because going through a divorce can be a challenge for anyone regardless of the circumstances, you will want a professional to guide you through the tough times.
What can one take with them when they move out prior to a divorce? While not all states have the same laws, experts agree that this should not be the first question asked during the divorce process. There are other important points to consider first.
A Common Thought
While the most common thought in the mind of anyone going through a divorce may be to get up and go, this is not, for the most part, a good idea. It might be tempting to leave a home shared with an ex but it is not often smart. There are ramifications that most people never consider. That’s why it is always a good idea to first consult a NYC divorce attorney.
It Will Cost You
In general, when someone leaves a home prior to the divorce being finalized, it will hurt his or her case. If you are personally considering leaving your home before your divorce is finalized then you need to consider a number of different things before you pack your bags and hit the highway. If you pull out early, there will still be financial issues and perhaps even custody issues that will follow you.
Assets And Expenses
Your marital home is probably your biggest asset. If it was bought during your marriage, it is part of the marital estate. If your name is on the mortgage or deed then you are not required to leave.
Yes, if you leave it you will still get your share of it eventually but don’t get too comfortable with the idea.
The truth is that moving out prior to the divorce being finalized can lead to additional, unnecessary financial complications.
If you are actually the primary wage earner for the residence, then it could be an especially bad idea to leave. If you leave, you will still be expected to pay the mortgage and related expenses. Indeed, if you take off the court could very well simply order what is referred to as “a status quo order”.
A status quo order makes you responsible for paying whatever marital bills you paid prior to the divorce. So if you move out, you will end up with 2 groups of bills to pay now. Throw in your legal fees and you now have a potentially devastating financial problem. Ergo, it is simply better to stay.
What About The Children?
If you have children your problems can be further compounded. If you live in the same home as your children and interact with them daily, that all disappears when you move out of the house. Suddenly there is less time to be with your children.
Before you leave and lose that time with them, that you meet with a divorce attorney. Make sure there is an understanding in place before you move. Without a legal schedule in place, you could very well end up not ever being able to see your kids.
You need a set schedule that evenly divides time with your children. Without it, you could also have problems with work and could even have to seek legal assistance to get your kids back. You could also be denied parenting time. You could also be made to pay child support if your spouse tells the court your children will stay with him or her and not with you.
If You Really Must Go
If you still insist on leaving prior to the finalization of your divorce, so be it. Here are the things you are legally able to take with you when you leave your marital residence. You are permitted to take anything that would be officially considered as being your exclusive property or anything that was purchased exclusively with your income.
One obvious example could be your car. If you bought yourself a new car using your own money then it would be considered your property and you can drive away in it when you leave. If you lost your job, however, and your spouse paid for the last several payments, then you are not allowed to take it without your spouse’s permission.
While laws may vary per state, the bottom line is simple. If you insist on leaving before your divorce is finalized then you must limit yourself to taking only the property that you rightfully, legally own. Anything to which your spouse contributed funds–anything that can be considered “mutual property” belonging to the both of you should be left until after the divorce is final.
Legally, a separation agreement is a kind of stepping stone to a divorce. The agreement is designed to sort out important things like financial responsibility and care of children. In some cases, a separation agreement will include a protective order if the situation warrants such a stipulation. A separation agreement is a contract and one that usually sets into motion what will ultimately be a part of the divorce agreement. The terms of a separation agreement will be unique to the couple.
One of the most important parts of a legal separation agreement is the protection it provides. Legal separation protects you from being responsible for your spouse’s debt, taxes, or other liabilities. It also gives you a head start on future decisions that will have to be made in a divorce agreement. For some, it also just provides some peace of mind during a period when considering whether to go through with a divorce. If the couple decides to truly reconcile, a separation agreement becomes null and void. In some states, you may need to withdraw your application or file to have the agreement made null.
When the parties reconcile only briefly, however, the separation agreement will most likely remain valid. The major exception to this is if there was a protective order as part of the agreement. In this case, there would be a breach of terms and it could have major consequences. It could affect the terms of the divorce and could even lead to criminal charges. If there is no such protective order, the separation agreement should remain intact.
If the reconciliation involves a return to the roles and behaviors of the marriage, it could complicate the situation. For example, if the couple moves in together and shares finances like they had previously, even if only briefly, that could change the financial figures originally agreed upon. There are a lot of nuances since every separation agreement is unique and every experience of reconciliation is unique. Whether or not and how your separation agreement is affected can be difficult to determine without counsel.
In the case of a brief reconciliation, it’s a good idea to take another look at the separation agreement with both attorneys. This is especially important if the reconciliation altered the financial situation of either or both parties.
It is also important to note that the exact laws around divorce and legal separation differ from state to state. In some states, even a brief reconciliation can affect your legal grounds for a no-fault divorce. One way to deal with this is to include a reconciliation provision in your separation agreement. This simply says that even if there is a reconciliation, the terms of the separation agreement stand. This certainly smooths things over in the case of a brief reconciliation. If the reconciliation is more permanent, however, this provision will require you to file to have the separation agreement made null in order to be legally married again.
Typically, a brief reconciliation won’t affect your separation agreement, but it really depends on a number of factors in your particular situation. It’s always best for both spouses to consult with their divorce attorneys in NYC after a brief reconciliation to see if the separation agreement still stands or if it needs to be modified.
No matter how long two people have been married, there are times when something happens that fractures the union beyond repair. If this is where you find your marriage, separation is probably heavy on your mind.
You could accomplish this by simply living in separate homes or by getting a legal separation. Physically separating before deciding to file a divorce can be beneficial on both sides. You and your partner have a right to do this on your own terms without involving the court system. However, there is no legal significance without court acknowledgement of the separation agreement.
Deciding Whether to Involve the Court for a Separation Agreement
Separating can present challenges when two people decide to write their own agreement without help from the court system, particularly if you and your spouse cannot come to an amicable agreement on the terms. If this is the case, you may want to use the court to ensure the agreement is both legal and effective in being enforced.
For some jurisdictions, a Marital Separation Agreement is acceptable if it is part of the divorce complaint. The Agreement becomes an enforceable court order. This is the only way to legally enforce the Agreement if you or your spouse violates the terms. Merging the document with the final judicial decree only makes it a contract between two people that is not enforceable.
Difference between a Legal Separation and Divorce
A legal separation and a divorce creates physical space between you and your spouse. While there are avenues to ensuring that your separation is legal, it is not the same as divorcing your spouse. The sole difference between the two is even with a legal separation, your marriage is still acknowledged as legal and you are not free to marry someone else.
During the legal separation, you and your spouse may choose to reconcile. Depending on where you live, you may not need court approval to reconcile during a legal separation. In addition, where you live may also determine how long the legal separation is valid. Some states allow one year for a legal separation.
Reasons couples choose to separate legally can vary, with some choosing to do so as a prelude to getting a divorce. Reconciliation is not a consideration. Other couples, however, may simply want to live apart. They may divide property and parenting responsibilities as though they are divorced, but moral opposition to divorce prevents them from dissolving the marriage.
Finances can be a motivator for other couples. They want to keep the tax and health insurance benefits of marriage. Regardless to the reason for a legal separation, divorce has only one path. If the ultimate decision is a divorce, you will need to file a separate action with the court.
File a Legal Separation with the Court
If you want your separation to be legally recognized, you will need to file documents in court. Typically, a judge renders a court order after you have submitted the required documents to the court. While you have the option of drafting a Marital Separation Agreement, enforceability is severely limited to monetary damages.
Legal filing is not required for a separation agreement. However, suing for violation of the terms must take place in a case that is separate from the divorce proceeding.
At the time of filing for a legal separation, you are usually required to also include other requests for child custody, spousal support and division of property. Your circumstances and reasons behind the requests should be given serious consideration.
State laws vary when it comes to handling the dissolution of a marriage. Nevertheless, getting a legal separation and divorce have some similarities. Typically, you must file a petition for both a legal separation and a divorce with the county court in which you reside.
For both filings, you must explain why you are seeking a legal separation or divorce. Grounds could be for irreconcilable differences or other reasons normally given for a divorce.
When a husband and wife separate from each other, they might enter into a separation agreement, but it’s unlikely that a separation agreement would operate as a valid and binding contract unless a court approves it. Don’t try to draft and enter into a separation agreement on your own. A judge might find it fundamentally unfair and strike the agreement in its entirety.
A separation agreement operates like a marital settlement agreement in a divorce case, but no divorce case need be filed. It can address issues like:
A married couple can’t just separate and resolve the above issues without the approval of a court.
Can a separation agreement be enforced?
Separation isn’t simply a matter of contract. Any agreement must be brought before a judge. He or she can refuse to approve parts or all of the agreement if it’s determined that it isn’t fair and equitable and in the best interests of any children of the marriage. You stand a much better chance of enforcing a separation agreement if it was previously approved by a court rather than if it wasn’t.
How is it enforced?
If a separation agreement hasn’t already been approved by a court, you must file an action to have it approved before it can become enforceable. If it’s approved in its entirety, it’s enforceable in its entirety by seeking to have a breaching party held in contempt of court for whatever provision he or she might be in breach of.
How to enforce it
Provisions of a separation agreement are enforced the same way as the provisions of a marital settlement agreement. That’s through contempt proceedings. The party seeking to enforce the agreement asks the court to have the breaching party held in contempt of court for failure to comply with a judicially approved settlement agreement and order. An appropriate motion and notice thereof are required. At hearing, the moving party asks the court to order the respondent to show cause why he or she shouldn’t be held in contempt of court for failing to comply with the terms of the separation agreement. Another hearing date is set for that purpose, and the judge will order how the respondent is to be given notice of the second hearing date.
Failure to appear
Assuming that proper service is had on the respondent, and he or she fails to appear for hearing on the rule to show cause, a contempt order will likely be entered with an order for a body attachment and a bond. The judge will order the sheriff of the county where the respondent resides to take the respondent into custody and be brought before him or her. The judge will then give the respondent an opportunity to purge contempt.
What comes to issue is that the party seeking to enforce the separation agreement has incurred additional legal fees and taken time from work that otherwise wouldn’t have been necessary. Compensation for that has been lodged with the court in the form of the respondent’s bond. A motion for a turnover order of that bond for the benefit of the moving party or their attorney would be appropriate for purposes of the additional legal fees and lost time from work.
Don’t try to draft a separation agreement on your own. Always have a separation agreement approved by a court. Without such approval, it’s likely that a court would refuse to enforce it.