Q. What
is a Marital Separation Agreement?
A marital separation agreement,
also known as a property settlement agreement, is a written
contract dividing your property, spelling out your rights,
and settling problems such as alimony and custody. A marital
separation agreement may be drawn before or after you have
filed for divorce — even
while you and your spouse are still living together.
A marital separation agreement, also known as a property
settlement agreement, is a written contract dividing your
property, spelling out your rights, and settling problems
such as alimony and custody. A marital separation agreement
may be drawn before or after you have filed for divorce — even
while you and your spouse are still living together.
A marital separation agreement, also known as a property
settlement agreement, is a written contract dividing
your property, spelling out your rights, and settling
problems such as alimony and custody. A marital separation
agreement may be drawn before or after you have filed
for divorce — even
while you and your spouse are still living together.
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Q. Why
is a Marital separation agreement important?
If you have
no marital property, no joint debts, and no children, you
probably don't need a marital separation agreement to get
a no-fault divorce. However, if you want to provide for
the future governance of your relationship, as well as
provide additional evidence to the court about the day
that you separated, you should have a Marital Separation
Agreement. An agreement leaves no doubt about the details
of the ending of your marriage relationship. It is better
to have a clearly written agreement, rather than rely on
verbal understandings.
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Q. Do
I have to file a Marital Separation Agreement with
the court?
When you initially
execute your Marital Separation agreement you do not have
to file the Agreement with the Court to be effective. When
you begin the divorce proceedings you will, in most jurisdictions,
attach the Marital Separation Agreement to the complaint
and ask the court to merge, but not incorporate, the Agreement
into the final judicial decree. If the Marital Separation
Agreement is incorporated into the decree, it becomes a
court order and is enforceable by the court's contempt
powers. If you don't incorporate it into the decree, it
simply becomes a contract between you and your spouse,
which you later have to sue in a separate action to enforce.
If the separation agreement is not incorporated into the
divorce decree, and your spouse violates the agreement
you can still seek money damages for the violation of the
agreement, but it is easier and faster if the agreement
is incorporated into the divorce decree.
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Q. What
is the difference between a contested or uncontested
divorce?
Divorces
are either contested or uncontested. Contested divorces
are those in which the respondent disputes any issue in
the case - the divorce itself, the property division, child
custody, alimony, etc. Uncontested divorces fall into two
categories - (1) Consent Divorces - the parties agree on
all major issues; and (2) Default causes - where the respondent
fails to appear to contest the divorce or any issue in
it, either because he or she chooses not to oppose it,
or because he or she cannot be located. By entering
into a Marital Separation Agreement you make your divorce
an uncontested divorce.
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Q. How
long are the parties bound by a Marital Separation
Agreement?
A
separation agreement is a legal document that will bind
you through many years and determine your rights, obligations,
and responsibilities from your marriage. You and your spouse
can amend the agreement if you both consent to the changes;
or it can be modified by a court order, provided the agreement
does not specifically state that the agreement is not subject
to any court modification. Nevertheless, the court can
always modify provisions in an agreement regarding the
care and custody of any minor children.
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Q. Do
the courts review the fairness of a Marital Property
Settlement Agreement?
In
an uncontested divorce, the court nearly always approves
the agreement of the parties if it is generally fair and
the court is convinced that the agreement was entered into
by both spouses without fraud or coercion. Often the court
may want to review financial affidavits attached to the
agreement in order to determine its fairness.
In
negotiating your agreement, you should be guided by how
a court is likely to divide your property, award custody
and child support, and deal with other issues.
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Q. How
do the courts divide assets and debts in an "equitable" distribution
state?
In
an "equitable distribution" state the court "equitably
divides" the marital property. The court normally considers
the length of the marriage, age, health, conduct of the
parties, occupation, skills and employment of the parties.
Equitable division does not mean equal division and seldom
is property equally divided. The court will order an approximately
equal division of the assets and liabilities when:
- It was a long marriage
- The spouses have nearly equal wealth before the marriage
- Both spouses have approximately equal earning ability.
- There are no minor children.
The
court will award more property (and fewer debts) to the
spouse who has:
- Less earning ability
- Less financial contribution to the marriage if the marriage is a short-term marriage.
- Poor health or other adverse circumstances.
- Custody of minor children.
- Marital and Non-Marital Property..
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In
an "equitable distribution" state, all property acquired
during the marriage is "marital property" and all property
owned before the marriage is "non-marital" property. Gifts
or inheritances to either spouse during the marriage is
non-marital property.
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