by Christina Randazzo, Esq.
While I have written previously about the rarity of the truly uncontested divorce, it does happen that sometimes a separating couple is able to sit down together and work through the details of their separation without any outside help. Now the question is, what do you do with that piece of paper on which you scribbled out your agreement?
To protect your interests and insure your rights, your arrangement should be formalized into a Separation Agreement. In New York, when properly prepared and executed, a Separation Agreement is a binding contract and can be enforced if either party fails to comply with its terms. The piece of paper you both went over at the kitchen table is most likely not enforceable as it probably does not meet the requirements of a binding contract under the law. A Separation Agreement should be comprehensive and address all issues relevant to your separation, including addressing child custody and child support, maintenance, the marital home, division of marital property, allocation of marital debt, distribution of retirement assets, etc. It also must be signed before a notary by each of you and meet certain other requirements set forth in the law.
Once a Separation Agreement has been prepared and signed by each party before a notary, you can choose to go no further with the process, or either party at any time can file for a divorce and ask the court to incorporate the Separation Agreement into the final Judgment of Divorce. The Separation Agreement will then become not just a binding contract but an order of the court as to the terms of your divorce.
For some individuals, the only reason you want to get a lawyer involved in your divorce or separation is to make sure you have thought of everything and to make sure it is done correctly. The bottom line is you want to save time and money, but want the peace of mind of an attorney’s knowledge and experience without making the situation overly complicated. For some, where a splitting couple is able to reach compromises and agreements between the two of them, it is possible for an attorney to be involved simply to advise you and prepare the paperwork.
If this describes your situation, one caveat you should be aware of is that an attorney cannot represent both parties if a couple is divorcing or separating. Your attorney will only represent you and your interests and cannot advise your spouse. Your spouse may retain his/her/their own counsel or may choose not to be represented in the process.
If you would like to have a Separation Agreement prepared or reviewed, or would like to discuss your unique situation, click here to contact me.
By Christina Randazzo, Esq.
Clients will often tell me that they and their spouse want an “uncontested divorce.” There is a good reason for this – in theory, an uncontested divorce is easier, quicker, and cheaper than a divorce where the parties intend to fight over every issue. However, what an uncontested divorce really means should be clarified so that you and your attorney are on the same page.
A truly “uncontested divorce” in New York State is a divorce in which you and your spouse agree that you both want a divorce and also agree on every issue which must be made as part of that divorce. You have already decided whether the marital home will be sold or whether one of you will buy the other out and for how much. You have already decided the custodial schedule for the children, where they will spend holidays and how to divide vacation time, who will be making important decisions on their behalf and how that will work. You have already decided how much child support will be paid and whether maintenance will be paid, how much, and for how long. You have already decided how to divide any marital debt. You have already decided how to divide retirement assets. You have already decided about whether you will have an obligation to maintain life insurance, how to divide your personal property, who will claim the children on tax returns, and so on.
In that context, as you may expect, a truly uncontested divorce is rare because usually divorcing couples do not agree so easily on these often difficult topics. However, if you and your spouse are amicable and are able to sit down and hash these issues out, then your attorney needs only to review your plan to make sure it is fair to you and is within the bounds of the law, draft an agreement to memorialize your arrangement which will be signed by you and your spouse, and then submit the divorce paperwork to the court along with your agreement. It can be that painless if you really do agree on everything and your agreement is fair to both of you.
Ideally, a divorcing couple is able to come to a fair agreement on their own to save time and attorney fees, but usually in my experience, when someone says he or she wants an “uncontested divorce,” the reality is that the couple agrees that they want a divorce but don't completely agree on all of the other details. That’s okay and is normal when a couple is divorcing. If this applies to your situation, I will go through all of the relevant issues with you and identify the areas where you and your spouse are in disagreement. We will focus on negotiating and narrowing those areas of disagreement so that an agreement can ultimately be reached, with the goal still being to get you divorced as quickly and cost-efficiently as possible while avoiding the courtroom.
To speak with me about your divorce, uncontested or otherwise, click here to contact me.
To further discuss your family law situation, call Christina at 845-632-1971 or click here to send an email.
The content of this blog is not, nor is it meant to be, legal advice. Consult an attorney about your unique situation before proceeding in your legal matter.