Understand Your Separation Agreement
It is important to understand the termsof the separation agreement that you sign, because it will usuallycontain a modification and waiver clause. This means that bothspouses agree that there will be no changes in the agreement unlessautomatic changes have been included, or changes are made throughthe court system. If both spouses agree to waive any conditionof the agreement one or more times, this does not constitute aprecedent that voids the terms of the original agreement.
A Trial May Not Be Necessary
An uncontested divorce case is any suitfor divorce (including legal separation or annulment) in whichthe final judgment is entered without the need for a trial. Thisdoesn't mean that the issues between the spouses have been resolvedquickly or easily. It means that there has been successful negotiationabout support, custody, and the division of assets and liabilities,which can then be presented to the court. This agreement willnot need any determination by the judge as to who should get whator do what. It does, however, require a judicial proceeding underthe laws of your state before you are issued a legal divorcedecree.
Collecting Information
Depositions, the primary legal toolfor getting information, may be taken with regard to:
- Alleged misbehavior
- Income
- Assets
- Financial need
- Care and condition of children
- Mental health
Make Sure Your Divorce Is Finalized
Bigamy is the criminal offense of havingtwo or more husbands or wives living at the same time. When discovered,the original marriage may be valid but the subsequent marriageis considered void and unenforceable.
If you are planning to remarry, makesure that your prior marriage has been properly ended. State rulesvary regarding waiting periods for a divorce to be finalized.If you are not sure of your situation, call or write to the Registryof Vital Records and Statistics office in the city or county whereyour divorce case was processed. Ask for a certified copy of yourdivorce court order. If it is not available, ask your originaldivorce attorney for help.
Note: A legal separation does not dissolvea marriage. You must obtain a divorce or legal annulment.
Pay Attention to Details
When a mediated agreement is drawn up,it should be reviewed by each spouse's attorney to make sure that:
- The document is legally correct.
- Individual rights have been protected.
- Tax implications are recognized.
- Every proper consideration is included.
At this point, corrections or modificationsare agreed upon and made.
Court Orders
Pretrial orders and written pleadingsare formal motions and hearings to get temporary court ordersthat apply to both spouses. These orders usually concern interimarrangements regarding money, custody, and residence in the familyhome. They can also be restraining orders, which place temporaryrestrictions on habitation, communication, and visitation as wellas preventing the sale or waste of assets.
Emancipation of Children
For the purpose of developing custodyand support arrangements in a separation agreement, children areconsidered emancipated (legally independent) when they:
- Reach the age of 18 (up to 23 in somestates if a full-time student)
- Get married
- Enter military service
- Become self-supporting through full-timeemployment
- Establish a permanent residence awayfrom either parent or custodian (not including boarding school,college, or extended travel)
State Guidelines May Vary
Marriage is an emotional relationshipand an economic partnership. Each state has slightly differentrulings about the distribution of things you own and things youowe when you decide to get a divorce. To find out how your statedecides these matters, you can:
- Read your state statutes in the library
- Ask a divorce lawyer or the local LegalAid Society
- Visit a family law clinic at a nearbylaw school
Factors to Consider
Divorce is a business deal - an extendedcontract negotiation. If you and your spouse each have a high-profilecareer, you risk losing those careers by addressing every aspectof your divorce in a courtroom.
The courts see divorce issues as including:
- Division of assets and liabilities
- Spousal support
- Responsibility to children (custodyand support)
- Be Realistic with Finances
It is essential to look at the currenteconomic factors of the family for a realistic approach to spousalsupport. Our legal system does not want divorced spouses on thepublic dole. However, putting too much pressure on the spousewho pays the bills (in an already toxic situation) can lead toan agreement that is never carried out. A spouse who is tiredof fighting may agree to anything just to get out and then disappear.
Absentee Parents
When the support payer cannot be found,start a search by checking with the parents and relatives of themissing ex-spouse and with past or present employers and friends.Contact your local state representative for the names and phonenumbers of agencies authorized to perform computerized searchesof federal, state, and private records to locate absentee parents.
Advantages of Mediation
- Develops communication in areas ofcommon concern.
- Allows maximum participation of bothpartners.
- Supports creative and innovative thinking.
- Assures greater success in carryingout agreement (less likelihood of future litigation) since bothparties make compromises voluntarily.
- Minimizes trauma for children.
- Enhances ongoing relationship and individualability to resolve future problems.
Disadvantages of Mediation
- There is no penalty for lying, sinceinformation cannot be taken under oath.
- Emotions may be too strong to allowrational conclusions.
- Mediation doesn't work when couplesreally want public justification or revenge.
- When one spouse is the dominant partnerand the other will not be assertive, the mediator is forced tolose objectivity and/or neutrality.
- Neutrality is not appropriate whenone spouse truly needs a strong back-up in the case of retardation,brain damage, or severe character disorder.
Business Accounts May Be Manipulated
When a family-owned business is an elementin divorce negotiations, hidden assets are not uncommon. For example,accounts may be manipulated to make income appear to be dwindlingrapidly. In addition, consider the possibility of:
- Padded expenses
- Retirement plan abuse
- Debts by way of phony loans
- Temporary contract agreements
- Profit-sharing schemes
- Cash payments
If hidden assets exist, their documentationwill probably require the legal discovery process. If discoveryis made after the divorce is final, it is possible that the courtwill see this as perjury with intention to defraud.
Put Business Details in Writing
If you and your spouse have starteda business together, it makes good business sense to put in writingthe things you have agreed upon. At a minimum, this list needsto include the following:
- Percentage of ownership
- Job description, responsibilities,and authority
- Financial contributions
- How draws, salaries, and bonuses areto be paid
