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Frequently Asked Questions about
Marital Separation Agreements
Q. What is a Marital
Separation Agreement?
Q. Why is a Marital Separation Agreement important?
Q. Do I have to file a Marital Separation Agreement with the
Court?
Q. What is the difference between a contested or uncontested
divorce?
Q. How long are the parties bound by a Marital Separation
Agreement?
Q. Do the courts review the fairness of a Marital Property
Settlement Agreement?
Q. How do the courts divide assets and debts in an "equitable
distribution" state?
Q. What is the difference between "marital property" and
"non-marital property"?
The Marital Separation and Property Separation Agreement (MSA) that you create
using our Rapidocs document assembly software, will cover every major
circumstance and enable you to deal with the following issues:
Ordinarily you
execute an MSA before you file your divorce papers, normally at the time that
you separate. This allows you to negotiate and execute your MSA and then to
file for your divorce as soon as any required waiting period(s) has/have been
completed.
Do-It-Yourself Marital
Separation Agreements &
Divorce Legal Form Kits
from The-Law-Store
Q. What is a Marital Separation Agreement?
A marital separation agreement, also known as a property settlement
agreement, is a written contract dividing your property, spelling out your
rights, and settling problems such as alimony and custody. A marital
separation agreement may be drawn before or after you have filed for divorce
— even while you and your spouse are still living together.
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Q. Why is a Marital separation agreement important?
If you have no
marital property, no joint debts, and no children, you probably don't need a
marital separation agreement to get a no-fault divorce. However, if you want to
provide for the future governance of your relationship, as well as provide
additional evidence to the court about the day that you separated, you should
have a Marital Separation Agreement. An agreement leaves no doubt about the
details of the ending of your marriage relationship. It is better to have a
clearly written agreement, rather than rely on verbal understandings.
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Q. Do I have to file a Marital Separation Agreement with the court?
When you initially
execute your Marital Separation agreement you do not have to file the Agreement
with the Court to be effective. When you begin the divorce proceedings you will,
in most jurisdictions, attach the Marital Separation Agreement to the complaint
and ask the court to merge, but not incorporate, the Agreement into the final
judicial decree. If the Marital Separation Agreement is incorporated into the
decree, it becomes a court order and is enforceable by the court's contempt
powers. If you don't incorporate it into the decree, it simply becomes a
contract between you and your spouse, which you later have to sue in a separate
action to enforce. If the separation agreement is not incorporated into the
divorce decree, and your spouse violates the agreement you can still seek money
damages for the violation of the agreement, but it is easier and faster if the
agreement is incorporated into the divorce decree.
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Q. What is the difference between a contested or uncontested divorce?
Divorces are either contested or uncontested. Contested divorces are those in
which the respondent disputes any issue in the case - the divorce itself, the
property division, child custody, alimony, etc. Uncontested divorces fall into
two categories - (1) Consent Divorces - the parties agree on all major issues;
and (2) Default causes - where the respondent fails to appear to contest the
divorce or any issue in it, either because he or she chooses not to oppose it,
or because he or she cannot be located. By entering into a Marital Separation
Agreement you make your divorce an uncontested divorce.
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Q. How long are the parties bound
by a Marital Separation Agreement?
A
separation agreement is a legal document that will bind you through many years
and determine your rights, obligations, and responsibilities from your marriage.
You and your spouse can amend the agreement if you both consent to the changes;
or it can be modified by a court order, provided the agreement does not
specifically state that the agreement is not subject to any court modification.
Nevertheless, the court can always modify provisions in an agreement regarding
the care and custody of any minor children.
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Q. Do the courts review the fairness of a
Marital Property Settlement Agreement?
In
an uncontested divorce, the court nearly always approves the agreement of the
parties if it is generally fair and the court is convinced that the agreement
was entered into by both spouses without fraud or coercion. Often the court may
want to review financial affidavits attached to the agreement in order to
determine its fairness.
In
negotiating your agreement, you should be guided by how a court is likely to
divide your property, award custody and child support, and deal with other
issues.
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Q. How do the courts divide assets and debts in an "equitable" distribution
state?
In
an "equitable distribution" state the court "equitably divides" the marital
property. The court normally considers the length of the marriage, age, health,
conduct of the parties, occupation, skills and employment of the parties.
Equitable division does not mean equal division and seldom is property equally
divided. The court will order an approximately equal division of the assets and
liabilities when:
-
It was a long marriage
-
The spouses have nearly equal
wealth before the marriage,
-
Both spouses have
approximately equal earning ability.
-
There are no minor children.
The
court will award more property (and fewer debts) to the spouse who has:
-
Less earning ability
-
Less financial contribution to
the marriage if the marriage is a short-term marriage.
-
Poor health or other adverse
circumstances.
-
Custody of minor children.
-
Marital and Non-Marital
Property.
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In
an "equitable distribution" state, all property acquired during the marriage is
"marital property" and all property owned before the marriage is "non-marital"
property. Gifts or inheritances to either spouse during the marriage is
non-marital property.
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