Legal Considerations Before a Divorce
August 19, 2021|
During this informative video, Chugh, LLP legal professionals provide an overview of legal considerations you should consider before filing for divorce, including:
- Prenuptial agreements.
- Marriage counselling.
- Divorce mediation.
- Legal separation.
- Marital settlement agreements, filed before a divorce complaint.
Before getting married, many couples choose to create a prenuptial agreement. This legal binding contract lays out the ownership of their assets in case the marriage fails or otherwise ends. Most state courts recognize and enforce these agreements.
Prenuptial agreements may address issues like:
- Designating separate and marital property.
- Spousal maintenance or support.
- Support for children from previous marriages.
- Divorce, or
- Death of a party.
The enforcement of prenuptial agreements varies by state, and generally the agreements must meet certain conditions to be enforceable. In New York, courts tend to enforce prenuptial agreements that are fair, entered through free will, with full financial disclosure, with independent counsel review, and proper acknowledgement by a witness or notary.
If a court finds that a prenuptial agreement was created through coercion or duress, fraud, using separate attorneys, or it is otherwise unfair or inequitable, it may not enforce the agreement.
When couples are considering a divorce, they may choose to undergo marriage counseling. The process can help identify and resolve issues that are leading to the marriage’s breakdown, such as financial issues, household chores, childcare, infidelity, substance abuse, or cultural differences. Counseling can also help resolve doubt about whether divorce is the best option. Marriage counselors are skilled in providing feedback and coaching to help couples overcome their conflict.
Sometimes, marriage counseling may be court ordered prior to finalizing a divorce. Judges may order counseling if they think the marriage has a chance of being reconciled, or if one spouse requests it.
Couples that have decided to end their marriages may opt for out of court divorce mediation, which provides a more affordable alternative to litigation.
During this voluntary process, couples work with a neutral, third-party mediator to address issues related to their divorce settlement, including:
- Child custody.
- Division of property.
If mediation is successful, the parties sign and memorandum of understanding, a marital settlement agreement, or a separation agreement.
Legal separation is an alternative to divorce, where couples remain married but live separately under a specific legal agreement. Finances are separated, and various issues are taken into consideration, such as division of marital assets and debts, and spousal support.
The process to undergo legal separation varies by state. The steps generally include:
- Confirm your state’s requirements for residency: Certain states, such as California, requires that at least one member of the couple lives in the state.
- File a petition for separation: File a petition with the court with the help of your trusted attorney. Filing fees may vary by county.
- File a legal separation agreement: You will want to submit an agreement that covers all important concerns, like child custody, support, and visitation rights; spousal support; division of marital assets, debts, and housing; and rules related to dating others.
- Serving your spouse with the separation agreement: If you are not filing jointly, you will need to serve your spouse with the marital separation petition. Generally, they have 30 days to respond.
- Settle any unresolved issues: Your spouse can file a counter-petition if they do not agree with the conditions of your separation agreement. If you cannot come up with a mutual agreement, you may need to appear before a judge.
- Get the agreement signed and notarized: Once both spouses consent to the separation agreement, they must sign and notarize the document. The court will accept the agreement for the judge’s review.
- Execute the agreement: The court clerk will keep your separation agreement on record once it is approved by a judge. You should keep a copy for your own records and be sure to follow the requirements of the agreement.
It is important to work with a trusted attorney to ensure that you adequately protect your rights throughout the process.
Enforcement of Legal
If the court has merged your separation agreement into an order or judgment of the court, then it is enforceable with a finding of contempt of the agreement. However, if your separation agreement is not merged into a court order, then it is likely only enforceable by contract remedies. The parties may need to participate in mediation or arbitration prior to legal action according to the dictates of certain agreements.
Like prenuptial agreements, legal separation agreements can be considered invalid on grounds like fraud, coercion, duress, or unfair or inequitable terms.
Legal Separation Reversal
If couples decide to get back together, they can reverse their legal separation agreement by filing a motion to vacate the order of legal separation. Temporary reconciliation can invalidate a separation agreement.
In states like New York, separation agreements are entered into solely by spouses. Therefore, spouses can terminate these agreements on their own.
Which States Allow Legal Separation?
Certain states require legal separation before you can file for divorce. In other states, legal separation is recognized but not required. Finally, some states do not recognize legal separation.
Legal separation is not recognized in the following states:
Marital Settlement Agreements
Couples may want to create a written legal contract which spells out the terms of their divorce, known as a marital settlement agreement. Filed before the divorce, these agreements may address issues including:
- Child support.
- Child custody and visitation.
- Alimony or spousal support.
- Division of debts and assets.
Marital Settlement Agreements become legally binding once approved by the court.
Divorce is complicated. Chugh, LLP’s compassionate family law attorneys are here to help you accomplish your goals and protect your rights. Contact us today for help with divorce proceedings, child custody and child support arrangements, spousal support agreements, and more.
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