- A Separation Agreement is a Contract between two married people ("spouses" is the term I will use, since a marriage can be between same sex couples in the State of New York).
- A Separation Agreement is NOT granted by the Court. You can stop looking on the court website for the application because there is none.
- Like any contract, there must be a meeting of the minds, and both parties must voluntarily agree to all the terms contained therein.
- There is an additional requirement under New York State law (Christian v. Christian, et. al.), that the terms of the Separation Agreement be fair to both spouses. In other words, in a commercial setting, if your lawyer knows the law and the other lawyer is an idiot, great, you can get over on the other party. Not so in NYS Separation Agreements, the contract must be inherently fair.
- The basic terms that would be covered in a divorce trial must be addressed in the Separation Agreement, these include: living separate and apart, who is responsible for paying what bills, custody, child support and child support add ons, visitation, health insurance, maintenance, equitable distribution of marital property and liabilities, tax exemptions and tax filings, etc.
- To comply with NYS law, you will need to have the Separation Agreement prepared by an attorney or a very experienced non-attorney Mediator. If improperly prepared, the Agreement may be rendered invalid.
- If it is your intention that the Separation Agreement be incorporated but not merged into an uncontested Judgment of Divorce, make sure it is prepared by an attorney who knows what they are doing.
- The spouses must both agree and execute the entire Separation Agreement, with the signatures properly acknowledged in the form that would entitle a deed to be recorded.
- A Separation Agreement becomes legal and binding when executed.
- The Separation Agreement may filed with the County Clerk's Office in the county where one spouse resides. There is a filing fee of $5.00.
- The effective date of the Separation Agreement -- the day you are legall separated -- is the date of execution. That is the date that both parties, or the second party if signing in counterpart, signs before a notary public.
- Conversion Divorce: living separate and apart pursuant to a Separation Agreement is a ground for Divorce. Therefore, one year after signing and notarizing the Agreement, you or your spouse may file for a divorce based on your Separation Agreement. This is called a “conversion” divorce (Domestic Relations Law§170[6]). Note: this used to be a very popular ground for divorce but since NYS enacted DRL Section 170(7), Irretrievable Breakdown of the marriage for a period in excess of 6 months (commonly known as Irreconcilable Differences), there has been less of a need for Section 170(6) as grounds for divorce.
- The $5.00 fee paid to file the Agreement will be credited to the divorce filing fees if you file in the same county where your Agreement was filed. You must file the Agreement at the time you file for the divorce, if you have not already done so.
- The main difference between being Separated pursuant to a separation agreement and Divorced pursuant to a Judgment of Divorce is that one is a contract and the other is a court order. If a spouse doesn't comply with a term in the separation agreement, the remedy is a suit for breach of contract. If a party violates the terms of a judgment of divorce, the other party has a panoply of remedies, potentially including contempt, if the violation was willful and other criteria are met.
- Juliana LoBiondo has been a Mediator for 25 years and a New York State duly licensed attorney for 23 years. For more information visit www.LoBiondoLaw.com. To set up a free mediation information session, call (845) 569-7600.
- Photo credit: eonlinenews.com
Sharing resources about Separation and Divorce in New York State, starting with how to avoid it, the Mediation route, how to download the NYS Uncontested Divorce forms and fill them out, and how to enforce Divorce Judgments and orders. This blog is not intended to constitute legal advice. Prepared by Mrs. Lo, a Mediator, and a Family and Divorce Attorney in NYS with 23 years experience.
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Wednesday, March 26, 2014
What is a Separation Agreement?
This is one of the most commonly asked questions from both Mediation and Divorce clients. It is also one of the most misunderstood areas of the law. Here is some basic information:
Tuesday, March 11, 2014
JUST SAY “NO” - THE DIVORCE COURT AND FAMILY COURT SYSTEM IS BROKEN
I have been a Family Court Attorney for 24 years, a Divorce
Attorney for 21 years, and a Mediator for 25 years. My average fee on a successful Mediation,
resulting in a written, binding Separation Agreement is $1,200.00. The highest fee I have seen in a divorce case
was over $100,000.00, charged by a divorce attorney in a firm I worked for many
years ago in another county. In the end,
the client ended up not getting the custodial arrangement he wanted, kidnapped
the children, was arrested in California after their photos were seen on a milk
carton, charged with multiple felonies, and did State prison time. And the attorney, in that firm ended up
reaping over $100,000.00 in legal fees, after he sued the mother for legal
fees. Yes, that’s right the mother, who
had her children kidnapped from her and spent all her money on private
investigators trying to locate the children.
The attorney even tried to attach the mother’s pension (he wasn’t
successful). After all she had gone
through, there was not even one drop of human kindness in that attorney, who
was my co-worker, and cared only about getting his legal fees. Let’s all say it together, I’ll go
first: “EWWWWWW!”
I do
everything I can to encourage parties who are properly positioned for mediation
to engage in the mediation process. As I
have written in previous Blogs, one of our top matrimonial Judges in New York
State, Appellate
Division Justice David B. Saxe, wrote an article for the New York Law Journal
in 2011 entitled, "Encourage Divorce Clients to Mediate." As
Justice Saxe noted in his article, mediation clients have more control over
their process, and ultimately it is the parties who craft the resolution in the
end, not a judge who presides over them. Moreover, Justice Saxe pointed
out that mediation clients tend to be more satisfied with their results than
litigation clients. As Justice Saxe wrote, "if matrimonial lawyers
focus on the larger picture, they might recognize that they stand to gain more
in the long run from the good will and recommendations of satisfied clients
than from the backlash of dissatisfaction in the wake of a typical unpleasant
divorce."
I
let mediation clients have complete control over the process, with me guiding
them to a resolution. Sometimes I take a
bath on the fees, giving them additional time without charge, for instance,
because I really want them to get to a resolution. I do not take an advance retainer, as I do
with divorce cases. Mediation clients
pay per session. If they don’t want to
schedule another session right away, that is their choice. When the parties see that they are close to a
resolution, they will often go into what I call super-collaboration mode, working
together to resolve the matters because they know they will minimize their
fees. Unfortunately, there is no such
incentive in litigation (court-initiated) matters.
Not
everyone is a mediation candidate. An
obvious example would be where there is domestic violence in the household. Or where one party has stolen money. Those parties are not on a level playing
field, which is the main requirement for mediation. But even where we start out with litigation,
there is almost always the possibility of settling before a full blown trial is
necessary.
For
those who are in the Family Court or in Supreme Court for divorce matters,
there is no governing organization trying to help you through, no incentive to
finish the matter quickly and inexpensively.
The average divorce attorney locally takes a $5,000.00 to $10,000.00
advance retainer, and bills against that retainer, which evaporates quickly
when there are motions, discovery, depositions, and court appearances. There are many cases in the Hudson Valley
with 6-figure legal fees, and some are still going on.
It’s
time to end the suffering. The current
divorce court system and family court system is humiliating to the parties,
destructive to families, and soul-sucking.
The attorneys who either intentionally keep the cases going to earn
legal fees or just don’t care enough to end it quickly or to mediate the cases
are the only ones who are profiting.
Someone told me they heard an attorney advertisement on the radio
telling people they shouldn’t mediate divorce cases. Wow. I
do not know who it was, but I would love to put them in a room with Justice
Saxe and let them tell him that.
I
don’t have any solutions for the divorce or family court system, sorry. I can tell you that if you or someone else is
in a situation requiring legal intervention, if the two parties can sit down in
a room, then try mediation. If you are
successful, you will be heroes. To
yourselves, your children if you have them, and to a new generation who just
says NO to divorce court and family court.
Juliana
LoBiondo
juliana@lobiondolaw.com
Juliana
LoBiondo
juliana@lobiondolaw.com
www.LoBiondoLaw.com
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