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Resolving disputes creatively

Legal separation may be an alternative to divorce

A number of couples decide to live apart, but not to proceed with a divorce. Sometimes, children are the reason for avoiding a complete split. Or, perhaps, the couple fears financial reverses, if they are forced to sell jointly held property or liquidate complex business assets. New York provides an option for such couples. It is called a legal separation agreement.

A legal separation agreement specifies the terms of the separation. Such an agreement can provide for child custody, child support, spousal maintenance and management of jointly held properties. A separation agreement may also provide for the valuation of joint assets.

Separation agreements are generally not subject to court approval, and if the terms prove to be ambiguous or unduly onerous, the couple can modify the agreement without appearing in court. A further purpose of a marital separation agreement is that it can provide the grounds for a divorce, if the couple has lived apart for six years. But, with the advent of no-fault divorce in New York, this reason is seldom used.

In some ways, a marital separation agreement is similar to a prenuptial agreement. The agreement should be in writing, and counsel should represent each spouse. A separation agreement may be ruled unenforceable, if one party resorted to duress or coercion to compel the other party to enter into the agreement.

In addition, the fraud of one party in failing to disclose assets may invalidate the agreement. A separation agreement can be terminated if the parties reunite with the intent of attempting to reconcile their differences.

Separation agreements can provide that their terms will be merged into any divorce agreement or decree or that the agreement simply terminates upon the filing by one spouse of a petition to dissolve the marriage. Anyone contemplating entering into a legal separation agreement should consult an experienced divorce attorney for advice on specific terms, especially the disposition of jointly owned assets.

Source: NYCBar.org, "Separation Agreements," accessed on May 29, 2017

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