James Nolletti is a New York attorney who provides his clients peace of mind. Assertive and client-centered, Mr. Nolletti and his team of professionals are dedicated to providing prompt, efficient, and exceptional legal services. In this podcast James answers questions regarding legal separation in New York, what can be included in a separation agreement, and whether or not a separation agreement can become part of a judgement of divorce.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: James Nolletti is a White Plains divorce lawyer and founder of Nolletti Law Group. James has over 30 years of experience in providing excellent service to individuals going through divorce who have complex divorce issues and significant assets.
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Read the Transcript of this Podcast Below.
Why would someone choose to get legally separated but not divorced?
Well, there can be many reasons. First let me say that in New York there’s two ways to get legally separated. One way is to amicably resolve differences and memorialize them in a settlement agreement. But there’s actually a procedure to file a court action to get separated in a contested proceeding. I’ve been practicing matrimonial family law for many years and I’ve never had a client seek to get a contested separation.
Based upon my experience people choose to get legally separated for different reasons. One may be because of their concerns about medical insurance, medical insurance which might be provided by an employer of one of the spouses to cover both, which would end upon the dissolution of the marriage. It would not end if they became legally separated.
Sometimes there’s a psychological consideration where one of the spouses might have either religious or other reasons why they don’t want to get divorced but they want to live separate and apart; therefore they enter into a legal separation. That can remain in place indefinitely if both spouses don’t wish to convert it into a divorce which we can talk about later.
So what issues can be decided in a separation agreement?
Well, traditionally a separation agreement would be a mirror image of what one might call a divorce agreement. It first and foremost would resolve issues related to children if there are children of the marriage. It would provide for things like custody and parental access time and child support, perhaps college education issues and support issues. And will also deal with whether there’s children or no children, and financial issues.
It will follow the usual process of identifying all of the marital assets, which generally are assets acquired during the marriage without regard to who’s name there in. Identifying the assets, categorizing them as marital, valuing them, some are easy to value, some require experts, and then equitably distributing them, taking of course into consideration tax implications, which we’ll discuss I think another time.
Are there any conditions required to create a valid separation agreement?
Well, yes. First and foremost there is the need for the parties to provide full and complete financial disclosure. Typical contract principles apply but also married spouses have a fiduciary obligation to be truthful and honest when entering into an agreement to separate, in that they have to provide full and complete financial information, if things are held back the agreement can be invalidated at a later time.
Also I’ve seen situations where clients try and do their own agreement and they have it signed, they may even have it witnessed. In New York there is a formal requirement that to have a valid separation agreement, it must be executed in the same manner in which a deed is required to be executed to be filed and recorded. That basically means they have to have a notary signed what’s called an acknowledgement.
If the spouses have been living apart, and they do a separation agreement and decide to get back together, does that automatically invalidate the separation agreement?
Well, it would if the attorney or the individuals who prepared it were not aware of the fact that that could happen. Most experienced attorneys will provide what’s called a reconciliation provision, which would supersede the common law that would end the separation if there’s a reconciliation. The document by contract will say that a reconciliation will not invalidate the agreement.
Can a separation agreement become part or all of the later divorce judgment?
Yes, that’s why it’s very important when entering into a separation agreement that parties be represented and that there be full and complete financial disclosure. Because under the law one of the two parties can subsequently convert that separation into a divorce and even if there’s a contested divorce down the line, the terms of that agreement, to the extent that they resolve the child related and financial issues, it will be valid.
There’s one caveat though, one thing to note. When parties sign an agreement that relates to their children, as opposed to the financial issues between the two of them, a court always has the authority to modify or change the agreement. The theory being that the parties are, I should say the children are not a party to the agreement, they wouldn’t have a lawyer representing them, and to the extent the parents provided to resolve any issue related to children.
Subsequently either parent or the children at some point in time can come back into the court and present proof to the court to indicate why that contractual provision is not in their best interest and a court can change it. That cannot be done when it comes to the financial issues between the parties.