BY STEVEN L. ABEL, J.D.
(REPRINTED FROM SPRING 1994 MEDIATION NEWS)

To answer the question of how legal is a legal separation, I’m reminded of the saying that “possession is nine-tenths of the law.” A signed separation agreement also is nine-tenths of the law. But what is the other tenth? The other tenth is having a good lawyer. Because if you want to wrest possession, you need a good lawyer, and if you want to upset a separation agreement, you need a good lawyer. On average, the agreement is going to hold.

THE SEPARATION AGREEMENT

How can we assess the strength or validity of a separation agreement? For a separation agreement to be valid, it must meet certain minimum requirements: it must be in writing, signed and notarized.1 Aside from the formal requirements, there are a number of other factors.

Living together — The agreement is usually signed after separation, but may be signed immediately before actual separation. At one time, the parties actually had to be living apart when the agreement was signed. This would create a real problem today because many people will not move out of the marital residence until there is a signed agreement. The courts now permit the agreement to be signed shortly before separation. How long before? 6 & 1/2 weeks has been approved, but 1 & 1/2 years is not valid.

Reconciliation voids agreement — Reconciliation requires actual cohabitation and an intent to reconcile. Merely living together and having sexual relations is not generally sufficient. But having children, buying and selling property in joint name, filing joint tax returns, and going to church together are significant facts. Complying with the agreement during “reconciliation” indicates no intent to repudiate the agreement. How long the parties live together is important. After 12 years, the agreement is certainly void. A clause requiring a written reconciliation is not enforced absolutely, probably because people rarely go to lawyers to reconcile. Divorce may be seen as a legal problem, but reconciliation is never viewed as a legal event.

Living together after divorce — The validity of a separation agreement is greatly (almost conclusively) increased by divorce. People who want to share their house for more than a few weeks after signing a separation agreement should get divorced immediately.

Rescission — A separation agreement can be overturned on the same grounds as any other contract: fraud, duress, violation of public policy, and unconscionability. With the exception of fraud by not disclosing assets, these grounds are rare to non-existent in mediated agreements, and almost as rare when both parties have counsel. Accepting the benefits of a Separation Agreement weakens and eventually voids these grounds.

Enforceability of agreement — A separation is as enforceable as any other contract: by arbitration if agreed, or by suing in court. Upon divorce, the agreement is usually incorporated in the divorce judgment, allowing violations to be handled by wage garnishments, sequestration of assets, or prosecuted as contempt of court.

Modification — The separation agreement is much like the divorce judgment in regard to modification: custody and child support are always modifiable by courts. Maintenance is difficult to modify as part of a separation agreement, requiring extreme hardship, and slightly easier after a judgment only, requiring a substantial change of circumstances. Equitable distribution is not modifiable. Usually the property division is final.

Effect on third parties — Married or divorced, people are not usually responsible for each other’s debts. Joint debts, such as mortgages and credit cards, are not effected by agreement or divorce, nor are tort liabilities, such as automobile accidents and malpractice. Joint liability only arises from joint use or ownership of an automobile, or joint practice. Joint liability also might arise from joint ownership of a house or other real property. Revising the deed from tenants-by-the-entireties to tenants-in-common would avoid each party’s share being liable for the debts of the other party. Liability insurance must be maintained for both parties as insureds on jointly owned or used assets.

WHAT IS A LEGAL SEPARATION?

First, there is no such thing as an illegal separation. Everyone is always free to move out and live apart. More particularly, the term “legal separation” does not come from living apart under a separation agreement. Rather, it means living apart under a Court order, decree or judgment2 of separation. The reason “legal separation” exists is to accommodate religions, including the Roman Catholic Church, which prohibit divorce. It is available in New York and most other states. Everything is the same under a “legal separation” as under a divorce except the right to remarry. Such judgments of legal separation have become quite rare, resulting in a confusion of terminology.

WHY WAIT TO GET DIVORCED?

In thinking about the legality of separation agreements, I also realized that we have to think about the question: why wait to get divorced? Certainly, getting divorced makes the total situation as bell-clear as it can get. So why wait?

Social security vesting — In order to be vested in each other’s Social Security account, a couple needs to be married for 10 years. In an 8- or 9- year marriage, this can be important. Although they may have 30 years to go until retirement, vesting is important for Social Security disability insurance as well. When the couple is married for close to 10 years, they might want to wait a short time for actual divorce. Signing a separation agreement, however, does not interrupt the 10-year period for vesting.

Medical insurance — Most group policies terminate an ex-spouse upon divorce. There are a handful of policies that terminate upon “legal separation,” and another handful that cover an ex-spouse. We must look at the terms of the policy to determine exactly when coverage ceases. Because the vast majority of policies stop coverage upon divorce, not getting divorced is often a way to continue coverage for the non-employed spouse. This is a concern if the non-employed spouse has significant medical problems and will not qualify for new medical insurance.

No need to fix blame or lie about grounds — A signed separation agreement becomes a true ground for no-fault divorce after one year.

TAX IMPLICATIONS:

Income tax — Married parties may file jointly or separately or as head of household. Divorced people may file singly or as head of household. Each affects the total tax they pay but the actual facts will determine which is cheaper. Because tax status is determined as of December 31 of the year in question, sometimes it pays to wait, sometimes it pays to rush.

Getting divorced also may be advantageous when one of the parties is committing a tax fraud each year. Not being married, and so not signing another joint return, would be better.

Living with the Agreement — When people wait to get divorced, they have time to “live with the Agreement.” When they come back to get divorced, they may want to spend time straightening out problems or failures to comply with the Agreement. Sometimes small problems get blown up in this process. Waiting may allow the party who doesn’t want the divorce to hold up the process again.

Emotional revisiting — When people wait to get divorced, they often experience the emotional pain of the separation again. Getting divorced right away avoids this unnecessary experience.


 

  1. See New York Domestic Relations Law §236, Part B, paragraph 3; and §170(6).
  2. These three words all mean the same thing, a document signed by a judge determining the result of a case. Lawyers have the penchant, need, or habit of using three words when one will do.

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