The Most Important Document in Divorce
Divorcing couples must come to an agreement on how many things will be handled during and after the divorce.
Those agreements must be written down for two reasons.
The first is to ensure both parties understand exactly what they have agreed to.
The second is to be able to include those agreements in the formal documents used to finalize the divorce.
The legal document for this purpose is called a Separation Agreement.
What Is a Separation Agreement?
A Separation Agreement is a legally enforceable contract between two divorcing parties which covers a wide range of issues, including (as applicable):
- Custody of the children.
- Child support.
- A parenting plan.
- Spousal maintenance (also known as alimony). NOTE: Alimony is no longer tax deductible by the payor in agreements legally finalized for the first time on Jan 1, 2019 or later. Please visit Spousal Maintenance Part 3 – Post-Divorce.
- The equitable distribution of marital assets such as the house, vehicles, bank accounts, retirement accounts; and marital debts such as a mortgage, credit cards, and loans.
Both parties must agree to the entire Separation Agreement. Each person’s signature must be acknowledged in the presence of a notary public. The couple doesn’t have to appear before the notary at the same time or even use the same notary.
Once signed and notarized, the Agreement can be enforced if the terms are violated by either spouse.
How Is a Separation Agreement Created?
A Separation Agreement can be created in two ways:
- The couple works with a trained mediator to create a Memorandum of Understanding (MOU), from which an attorney creates the Separation Agreement.
- The couple works with attorneys directly to create the Separation Agreement.
What Is a Memorandum of Understanding (MOU)?
An MOU is a nonbinding, non-legal agreement between two or more parties outlining the terms and details of an understanding.
Your divorce mediator uses the MOU to document the agreements that you and your spouse create during the mediation process. Your MOU itself is not binding or enforceable.
How Does an MOU Become a Legal Separation Agreement?
When completed, your MOU is ready to be processed into the legal system. Clients can use one neutral attorney to process the MOU for both of you, or the spouse’s separate attorneys can work together to create the final Separation Agreement.
The Separation Agreement becomes legally binding when signed by both parties and notarized. If the terms are violated by either spouse, the agreement can be enforced.
You can’t back-date an Agreement to take into consideration the time you were separated before signing the Agreement. You are legally separated only after the agreement is signed by both parties and notarized.
For more information on the incorporation of the Separation Agreement into the divorce documentation, please see this article by the NYC Bar Association.
Divorce Legal Separation Resources
- “Memorandum of Understanding – MOU” (Invesopedia)
- “Legal Separation in New York” (DivorceSource.com)
- “What Is a Legal Separation by Agreement of Parties?” (NYCourts.gov)
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This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.