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Ely, Counselor at Law
Category: Legal
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How do I get a separation agreement Under what conditions

Customer Question

How do I get a separation agreement? Under what conditions can I leave without one?
Submitted: 6 years ago.
Category: Legal
Expert:  Ely replied 6 years ago.

My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.

New York state DOES recognize a separation agreement. It can be written by attorneys, formally, or informally by yourselves. As long as BOTH parties sign and its NOTARIZED, it's enforcible. Then file that agreement with the Clerk of the County in New York where either spouse lives. At the end of one year from the date of the agreement, either spouse may sue the other for a "no-fault" divorce.If you DON'T do a separation agreement, property is split up in according to the factors outlined below. You can of course leave any time you want, but it's up to you to see if your spouse will agree to an agreement that would be better for you than the outline belowSeparate property and debt is property that is generally:

1. Owned before marriage by one spouse; or

2. Acquired by gift or will or similar legal way by spouse during marriage; or

3. Declared as such by prenup or postup; or

4. Traceable property purchased by one spouse only; or

5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.

Separate property and debt is awarded to the party which had claim to it in accordance with the rules above.

Community Property and debt is everything else, including but not limited to:

1. Income from BOTH parties; or

2. Declared as such by prenup and postup; or

3. Gift from one spouse to another; or

4; All titled and non-titled property gathered during marriage.

Community property and dent is split 50/50. In case of titled assets such as homes, cars, etc., it usually is awarded to one party and that party is ordered to make an “equalizing payment” to the other party. For example, a car worth $10k will be given to the wife but the wife is ordered to make a payment of 5k to the husband. Time to make the payments or payment plans are a norm in such a situation. Equalizing payments can also be ordered for neglect, assault, affairs, etc.

Accrued or vested retirement benefits are community property. This means they need to be divided in a divorce. Retirement benefits that fall under community property include military pensions, veteran's educational benefits, ERISA funds, IRAs, Keoghs, Employee Stock Option Plans (ESOPS), 401K and 403K plans, etc. Certain retirement benefits are not classified as community property. They include: Social Security payments, Compensation for military injuries, and Worker's compensation disability awards. There are two options for dividing retirement benefits: (1) the present-day valuation buy-out, and (2) division into two accounts. In the former, the spouse without the retirement benefits takes the present-day value of his or her interest in the retirement benefit and trades it for something else of equal value, such as cash or other assets. Note - stock options and pension plans where a person must work for a certain number of years may be worth more than you think. A Qualified Domestic Relations Order (QDRO) will be required to transfer a share of retirement funds from the spouse participating in the retirement plan to the other spouse, and is usually included in the final divorce papers.

Of course, if both parties come to an agreement about marriage property regardless of the rules above, the Court will most likely endorse said agreement in interest of post-divorce harmony. The above rules only come into play if the parties cannot agree on splitting of assets.

It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards XXXXX XXXXX 5% that cannot be agreed upon.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.

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