At some point in the mediation or collaborative process, spouses need to make a decision as to whether they wish to separate or divorce. They will choose between entering into a Separation Agreement and converting it to a divorce sometime in the future or entering into what is called a Stipulation of Settlement Agreement if they opt to divorce now.
1. Separation Agreement vs. Stipulation of Settlement Agreement
The content of both agreements is substantively the same. Each agreement deals with the equitable distribution of assets acquired during the marriage, such as bank accounts, property, and retirement plans. If there are children involved, everything from child support to the parenting schedule and college are addressed in each agreement. Spousal support, which is referred to as Maintenance in New York will also be addressed in the Agreement. These matters are settled in both types agreements.
2. Reasons to enter into a Separation Agreement
A. Delay divorce until both parties are emotionally or financially ready to pursue divorce
In a Separation Agreement, the spouses have settled their financial, support and other issues, but still may not be ready to file for divorce immediately. If there is a possibility that they will reconcile, they can rescind the Separation Agreement at any time. Perhaps the couple may be continuing to work on the marriage with counselling or other supports. Further, The cost of filing for divorce is an additional cost to the drafting of the Separation Agreement. The spouses may want to delay paying for the court fees and the preparation of the divorce papers depending on their financial circumstances.
B. Continuation of Health Insurance
The most common reason for entering into a Separation Agreement is to allow one spouse to continue to be covered by the other spouse’s health insurance. Under New York Law, once divorced, the ex-spouse can no longer stay on the other spouse’s health insurance. The only other option if there is a desire to stay on the same plan is to purchase COBRA benefits, which can be expensive. In rare cases, some health insurance plans do not even allow one spouse the ability to cover the other spouse if they are separated. We recommend that our clients check with their employer’s benefits office to confirm if they will be allowed to cover their spouse under a Separation Agreement.
C. Filing Taxes Jointly
Another benefit for doing a Separation Agreement is that it allows the spouses, because they are still married, to file joint tax returns. Once you are divorced, you can no longer file jointly. We recommend consulting with an accountant to determine the advantages and disadvantages of filing jointly or separately.
3. How much time is needed before filing for divorce after entering into a Separation Agreement?
Under New York’s “no fault” divorce law, a spouse can file for divorce by asserting that the marriage has been irretrievably broken for a period of 6 months or more. Another basis for filing for divorce is that the spouses have lived under a Separation Agreement for one year or more. Therefore, if the spouses have entered into a separation agreement the earliest they can file is six months after the Separation Agreement has been signed.
4. How long can spouses live under a Separation Agreement?
The short answer is indefinitely. The spouses can live under the separation agreement for as long as they want to by mutual agreement.
5. What makes a Separation Agreement “legal”?
A Separation Agreement must be acknowledged and signed by both spouses before a notary. Once the Separation Agreement is properly executed, we recommend to our clients that they file it in the County Clerk’s office where at least one spouse resides.
To obtain more information about the mediation or collaborative process, please contact us at 516-749-5017 or visit our website at www.nydivorcemediate.com. We will be happy to answer any additional questions or concerns you may have.