Separation Agreements in Uncontested Divorce

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.