Five Important Things To Put In Your Separation Agreement

separation agreement

Here in New York, a married person who wants to end his or her marriage has several available options. The alternatives for ending a marriage include “conventional” divorce, annulment (which is not available to all married couples), and legal separation.

Which option is best? As Rochester divorce attorneys, we know that many choose divorce automatically, but if you are ending your marriage in New York, you should give the legal separation option some thoughtful consideration. “Legal” separation, however, is more than just moving out of the marital residence; it’s a legal procedure.

What does legal separation accomplish? And what does it entail? Is legal separation the right choice for you and your spouse?

But first things first. Whether you divorce, annul your marriage, or legally separate, when you end a marriage in New York, you’ll need the sound advice and guidance that an experienced family law attorney provides. You’ll need that advice and guidance from the start.

WHY DO COUPLES CHOOSE LEGAL SEPARATION INSTEAD OF DIVORCE?

Marital partners may choose to separate legally – rather than divorce – for many reasons.

Some of the most commonly cited reasons for legal separation include:

  • The couple may not be sure whether they want to divorce.
  • The couple may feel that they cannot afford to divorce.
  • The couple may have religious beliefs that forbid divorce.
  • Financial benefits such as health insurance coverage continue during a legal separation.

divorcing couples

Most of the matters that will need to be resolved in a divorce can be resolved beforehand in a legal separation. However, unlike divorce, when a legal separation has been established, the spouses are still married under the law and may not legally marry someone else.

WHAT FIVE ISSUES SHOULD BE ADDRESSED IN A SEPARATION AGREEMENT?

A separation agreement is a legal contract between spouses that specifies the responsibilities and rights of each partner while they are living separately.

When partners obtain a legal separation in New York, their separation agreement can and usually should resolve these five issues:

  • the division of marital assets and debts
  • spousal support (maintenance or alimony)
  • child custody
  • child support
  • visitation

At a minimum, a separation agreement should spell out who your children will reside with (if you and your spouse are parents), who will be responsible for paying which bills, and how properties like cars and the family home will be divided and managed.

HOW WILL A DIVORCE LAW FIRM HELP YOU?

If either spouse fails to comply with the conditions and terms of a separation agreement, it can be enforced by the courts in this state. The arrangements that are established in a separation agreement may also be part of the divorce judgment if the partners later choose to divorce.

That’s one reason why it is so imperative to consider the conditions and terms of a separation agreement carefully. Discuss the agreement with your attorney and have all of your questions about the agreement answered before you sign.

divorce attorneys helping families

A separation agreement in this state is an enforceable legal contract that is typically prepared by an attorney. A good family law attorney can ensure that nothing in the conditions and terms of the agreement poses any risk to your long-term best interests.

WHAT DOES A LEGAL SEPARATION AGREEMENT ACCOMPLISH?

After both partners sign it, the separation agreement is filed with the County Clerk in the New York county where either partner resides. After one year of legal separation, either spouse may seek a no-fault divorce.

Legally speaking, a separation agreement declares that the partners no longer reside in the same residence. The separation agreement must be entered into voluntarily, and it must be signed by both spouses before a notary.

You and your spouse may legally separate for as long as you like, but if you use legal separation as the basis for a divorce in this state, you must reside apart and have the separation agreement in place for at least one year.

WHAT IS REQUIRED FOR LEGAL SEPARATION IN NEW YORK?

There is no residency requirement for obtaining a legal separation by agreement in New York so long as both parties are New York residents at the time the separation agreement is signed.

Otherwise, anyone who is seeking a legal separation in New York must meet one of these two criteria:

  • At least one partner has been residing in New York continuously for at least two years prior to filing for legal separation.
  • At least one partner has been residing in New York continuously for at least one year prior to filing for legal separation, and you were married in New York, you resided in New York when you married, or the grounds for the separation arose in New York.

drafting separation agreement

In this state, legally separating spouses are responsible for drafting their own separation agreements. Separation agreements can be long and complicated, so you’ll need the help of a qualified divorce lawyer or an award-winning family law attorney.

WHAT ARE THE DISADVANTAGES OF LEGAL SEPARATION?

Legal separation is right for some couples, and as you’ve just read, it can provide a number of advantages. However, a legal separation may not work well for other couples. What are the disadvantages of legal separation?

  • Legal separation does not end a marriage. Partners still have financial and legal ties to one another.
  • You cannot marry someone else when you are legally separated. You are still legally married.
  • It takes a full year before a legal separation agreement can become the basis of a divorce.

WHAT ARE THE ALTERNATIVES TO LEGAL SEPARATION?

If the disadvantages of a legal separation outweigh the advantages in your own situation, you may want to consider these alternatives:

  • Live separately but don’t put anything in writing.
  • Live separately but skip the separation agreement and have your attorney file petitions with the court for child custody, visitation, and child support.
  • File for a divorce with the help of an experienced Rochester family law attorney.

WHEN SHOULD YOU MEET WITH A FAMILY LAW FIRM IN NY?

Ending a marriage is never easy. There’s always an emotional toll, and if children are involved, ending a marriage is even more difficult. You’ll need an attorney who can be sensitive to your needs but aggressive on your behalf.

family law attorneys in rochester

When you know the marriage is going to end, get the legal help you need at once to protect your children and your interests. A good attorney’s help is your right.

If DNA Shows You’re Not The Parent, Can You Be Reimbursed For Child Support?

Can you get a “refund” if the child that you’ve been supporting turns out not actually to be yours? More often than you might think, family law attorneys in Rochester are asked this question.

If you learn that the child you’ve been supporting is not yours, submitting some DNA results to a New York family court may not always be enough to release from the court’s child support order.

WHAT IS ALWAYS A FAMILY COURT’S LEADING PRIORITY?

That’s because in legal matters that involve children, the courts in New York make the child’s best interests their top priority.

You may have all of the facts and evidence lined up to make your case persuasively, and a good family lawyer can ensure that you are treated fairly, but your own interests will not be the court’s highest priority.

In the state of New York, if you are paying court-ordered child support, and if you want a DNA test to confirm or deny paternity, that request must be made to the court. If a DNA test proves that you are not the child’s biological father, a child support order isn’t automatically terminated.

WILL YOU NEED A FAMILY LAW ATTORNEY?

Instead, a hearing will be scheduled, and a family court judge will make a determination that is in the best interests of the child.

And in some cases, what is in the child’s best interests may require you to continue making child support payments, at least temporarily, even though you know you are not the biological father.

In any paternity matter or child support dispute in the Rochester area or anywhere in western New York State, you’ll need to be advised and represented by an experienced family law attorney.

WHAT IS AN “ACKNOWLEDGMENT OF PATERNITY” IN NEW YORK?

Under New York law, when a child’s parents are not married, legal paternity is established when the child’s presumptive father voluntarily signs an Acknowledgment of Paternity form.

The Acknowledgment of Paternity form strongly warns presumptive fathers, “DO NOT sign an Acknowledgment of Paternity if, after reading this written notice and receiving oral notice, you have any doubts about the child’s paternity.”

Nevertheless, and for a variety of reasons, this warning is often overlooked or ignored, and a man becomes the legal father of a child that is not in fact biologically his own.

An Acknowledgment of Paternity that has been signed voluntarily by both parents is legally binding in the state of New York and establishes the lawful obligation of both parents to support the child financially.

CAN YOU CANCEL AN ACKNOWLEDGMENT OF PATERNITY?

Let’s say that after signing an Acknowledgment of Paternity, you learn that you are not, in fact, the child’s biological father. Is there any way that you can withdraw your Acknowledgment of Paternity after you’ve signed it?

If you are 18 years of age or older when you sign an Acknowledgment of Paternity form, you may withdraw it at any time within the first sixty days after you signed it.

If you sign an Acknowledgment of Paternity form and you are under the age of 18, you may withdraw it up to sixty days after your 18th birthday.

After those deadlines expire, anyone who has signed an Acknowledgment of Paternity may challenge it in court only if he or she signed the document while under duress or intimidation or on the basis of fraud or factual error.

HOW IS AN ACKNOWLEDGMENT OF PATERNITY VACATED?

The burden of proof falls on the party who wishes to withdraw the Acknowledgment of Paternity. If you’re in western New York, you’ll need to be represented by a reputable family law attorney.

If a New York family court judge determines that the man who signed the Acknowledgment of Paternity is not, in fact, the biological father of the child, the Acknowledgment of Paternity – but not, at that point, the child support order – may be vacated.

The court will send a copy of the order vacating the Acknowledgment of Paternity to the state’s Putative Father Registry and to the state’s child support enforcement unit if a child’s parent is receiving any child support services.

WHAT DOES IT MEAN TO SIGN AN ACKNOWLEDGMENT OF PATERNITY?

To answer our first question – can you “get a refund” if you’ve paid child support for a child who is not yours? – that answer is no, because when you made those payments, you were meeting a legal obligation that you accepted when you signed an Acknowledgment of Paternity.

In any event, as mentioned previously, the child’s best interests will always be a New York family court’s top priority.

Can you have the child support order dropped if you acquire proof that you are not the biological father, and that proof was not available when the child support order was first issued? Possibly, but you will need help from a knowledgeable and experienced family attorney.

WHAT IS THE COURT’S VIEW OF PATERNITY ACKNOWLEDGMENTS?

However, any man in this situation needs to understand the court’s perspective. When you signed a paternity acknowledgment, a father-child relationship was legally established. Even if it seems unfair, the child’s best interests, and not yours, will be the court’s chief concern.

If you can show that you were intimidated, coerced, lied to, or tricked in some way into signing a paternity acknowledgment, it will strengthen your case, but there is no guarantee that the state of New York will release you from your child support obligation before the child’s 18th birthday.

Of course, men can avoid this kind of legal problem almost entirely with some foreknowledge. The key is to have reliable DNA testing conducted before and not after you sign an Acknowledgment of Paternity.

HOW CAN A FAMILY LAWYER HELP YOU?

But if you’ve learned – or if you believe – that you are paying child support for a child who is not yours, discuss your circumstances, rights, options, and alternatives as quickly as possible with a skilled New York family law attorney.

You’ll learn where you stand legally and how the law applies to your personal situation. Your attorney will recommend the best way to move forward. If you want to stop making child support payments, you’ll need a lawyer who can present a powerful case on your behalf.

If you are being unfairly forced to pay for a child who is not yours, having a good attorney’s advice is the first step, and it is your legal right.

Can A Divorce Affect Your Taxes?

There are many things that can create big changes on your annual tax filing. Divorce is one of them.

Not only can marriage and divorce affect your taxes, but changes in the laws as they relate to divorce can also create issues as well.

Alimony and child support, as you expect, can affect your filings. Alimony payments can be deducted by the payer, even if you don’t itemize each year. This will still allow for a reduced taxable income. For those who receive alimony payments, they must include this as their own taxable income. Keep in mind that there have been changes in spousal support taxes as part of the Tax Cuts and Job Act in 2017, so you’ll need to pay close attention to those changes and how they affect your taxes each year. One of the biggest tax changes after 2018 is that alimony will no longer be deductible or taxable to the payer or the one who receives alimony payments.

Child support is part of the process for a majority of divorces. It has not been deductible or taxable for quite some time, and it remains true today. In other words, there’s no law that requires you to report it on tax returns. Be sure you and your former spouse are on the same page in terms of who claims your children on annual tax filings. This could create problems if you both claim the same dependents.

Did you know that changing your name could create a delay in your tax returns? Part of this delay could be a result of delays at the Social Security Administration, which is where you officially change your name. Either way, it can delay refunds. Another way to delay your refund is changing your marital status. Again, it goes back to ensuring the changes are recorded at the Social Security Administration.

The new tax laws have meant other big changes in marital and divorce relations.

Let’s say you remarried in 2017 and learned later your spouse has a significant amount of past due child support that’s owed to their children. The IRS might divert this refund to his or her children to pay down the past due amount. That doesn’t mean it has to affect you, however. You can file for injured spouse relief. This means the IRS will allow you to receive your portion of the refund based on your tax returns, while the remaining amount goes towards back child support.

In the past, equitable relief allowed for someone to delay their filing up to two years if they were unable to file on time due to what the IRS calls “difficult or intimidating situations.” An example might be domestic abuse. That two-year limitation has been lifted.

Finally, if you think you were owed more after your marriage or your divorce because you were unaware of what was being filed, you can now go back several years and have the numbers recalculated. It’s called Innocent Spouse Relief. Innocent spouse relief, separation of liability and equitable relief, outlined above, are the three ways in which this change can be used. You’ll want to discuss these possibilities with your divorce attorney.

For more information, speak to our divorce lawyers now.

Can SSDI/SSI Affect the Calculation of Child Support?

Wondering how Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) can affect the calculation of child support payments?

It is very important to first understand what these two particular programs are and what they do.

Social Security Income

Social Security Income (SSI) is administered by the Social Security Administration and provides cash payments each month those who the government deems as low-income elderly or disabled, and who have few assets. For children who are receiving benefits from SSI, the benefits are reduced by two-thirds of the amount that child support covers.

Social Security Disability Insurance

Social Security Disability Insurance (SSDI) is also a program administered by the Social Security Administration. This program provides cash benefits each month to those who are disabled and their families. The difference is that with the Social Security Disability Insurance program, there is a history of significant employment. That measurement is generally a verifiable work history of at least five of the previous ten years. The second difference is that assets are not considered for SSDI.

The Differences Between SSI And SSDI And How It Affects Child Support Payments

If you are the non-custodial parent who receives SSI, your child support payments will not take into consideration your SSI income. Further, if you are the custodial parent and you receive SSI, you do not have to report it as countable income.

If you are the non-custodial parent who receives SSDI, your child support payments will be taken into consideration your SSI income. As required under the DC Child Support Guidelines, SSDI is counted as income when calculating the monthly child support order.

If your child receives SSDI derivative benefits, you should know it counts as income for the parent from where the money is derived. If the benefits come from the non-custodial parent, the total of the benefits are deducted from the obligation using a calculation formulated by the state of New York.

Consider this example as a guide:

The benefit total is $300

Using the guidelines, the obligation is calculated at $500

The order would be set at $200

Note that if the benefits are more than the obligation, the order is zero.

Finally, you should know that if you are behind in your child support payments, your SSI benefits cannot be garnished. If you receive SSDI and you are behind in your child support payments, those benefits can and often are garnished.

Please keep in mind that each program has its own rules, waiting periods, formulas and other elements that affect the program and the recipients. Your best bet is to speak with a qualified family law attorney. Your child support lawyer can provide important insight as it relates to your divorce and the subsequent child support you pay or receive for the benefit of your minor children. If a parent is receiving disability payments for an injury or illness from which he or she will not recover, attention to an estate plan and a final will be time well spent.

For more information, speak to our child support attorneys now.