Separation Agreements: Rarely Recommended, They Are Documents Without Teeth

There are many reasons to enter into a Separation Agreement but the one reason rears its head over and over is: one spouse wants to maintain the health benefits of the other spouse while living separate and apart.

Any and all other reasons can be handled by Post-Nuptial Agreement. In fact, the above reason can be handled by a Post-Nuptial Agreement. Separation Agreements are very rarely a good idea. They are most always (99% of the time) used as a subterfuge to maintain health benefits for parties that no longer want to live together.

A Separation Agreement is simply an agreement between the parties. It is not a Court Order. For the Separation Agreement to be a Court Order, the parties should have started the action as a divorce action for separation and resolved it by the Agreement. If the Agreement is resolved and reduced to an order, a huge amount of health insurance companies and benefit providers are no longer recognizing the spouses ability to share benefits one to another by being legally separated. The fiction of giving benefits to someone as if you are married under a Separation Agreement is being eroded and health insurers and benefit providers are no longer working with a blind eye. A large amount of cases will not allow the benefits to go from one spouse to another when there is a judicial order decreeing that the spouses are separate.

If a Separation Agreement is not an Order (Judges do not want to order them, and most often they do not start as an Order) then the health insurance companies will most likely allow spouses to share benefits because there is no judicial order splitting their marriage. The benefits will continue but there is always a 5% risk that one of the health insurance companies will disallow or disclaim an expense because what the parties are doing flies on the face of the health insurance regulations and common sense. They are flouting their lack of a marriage and professing not to be legally divorced or separated under a court order. It is a fiction.

In any event, 95% of the cases under private Separation Agreements allow the benefits to continue. Benefits can run as much as $1,000.00 a month for a single person and it has a certain value in New York State. With that being said, there are inherent dangers and pitfalls for this, as the Separation Agreement is a document with little to no teeth.

In the event of a Separation Agreement, if one party decides not to pay child support in the amount set forth in the Separation Agreement, so be it. You can do it. The aggrieved party cannot go to Family Court to enforce it. They can only go to Family Court for “establishment” of child support. For example, if a husband is bound to pay $700.00 a week in child support and loses his job and suffers a significant reversal of fortune, the wife would have to bring him to Family Court for an establishment of child support. The child support may be established at $100.00 a week instead of $700.00 a week. The aggrieved wife would then have to go seek in Small Claims Court, District Court or Supreme Court the difference between the new established amount of child support ($100.00 a week) and the Separation Agreement ($700.00 a week).

Furthermore, during the ensuing divorce the husband may or may not be bound by the $700.00 a week Separation Agreement figure. He may be able to argue that the established amount in Family Court ($100.00 a week) is the law of the case. With respect to all of the Separation Agreements provisions concerning custody, relocation and division of property, there is very little teeth whatsoever to this document. With respect to custody and relocation, the issue can be decided as a new issue in Family Court but you cannot enforce a Separation Agreement in Family Court which has not become a Court Order. Once again, if it is a Court Order, you have just voided the initial purpose of doing the agreement: to receive benefits.

Even though the Separation Agreement can certainly be enforced in Small Claims Court, District Court and later in Supreme Court, you lose your Family Court enforcement mechanisms and you may suffer establishment of different terms and condition by going through Family Court or getting the eventual divorce.

To be clear: a Separation Agreement is simply an agreement between people who no longer want to be together and often just want to share benefits one to another. Therefore, if someone wants to violate the Agreement it is much more difficult than if a divorce had occurred and/or a Post-Nuptial Agreement had occurred which would clearly be enforceable in the course of an appending divorce. During the Post-Nuptial Agreement you would have the same pitfalls as a Separation Agreement with the establishment of child support in Family Court and/or new custody and relocation provisions pursuant to a new established Family Court Order.

In conclusion, it is rarely necessary to do a Separation Agreement unless you want benefits. If benefits are what you are seeking, consider a Post-Nuptial Agreement as there is virtually no possible way that benefits could be denied unlike the “legal fiction” of some Separation Agreements. Under a Post-Nuptial Agreement, the parties remain married yet can fix their obligations, liabilities and responsibilities in the very same manner a Separation Agreement can. The Post-Nuptial Agreement suffers from the same “lack of enforcement” as the Separation Agreement that is not court ordered. However, it is often done at a much cheaper rate then a full Separation Agreement.

At any given time a marriage can be tuned or reworked both emotionally and legally. When a marriage suffers from emotional or affection problems there is counseling and a certain host of service providers where couples can go in order remain married or ease the pain of an abrupt dissolution of the marriage. When a marriage is suffering from infidelity, financial, emotional or affectionate matters, these couples should also seek Divorce/Separation/Post-Nuptial Agreement advice from a divorce professional. We can ease the marriage through its rocky period by providing legal protection through a Post-Nuptial Agreement; in very limited circumstances, a Separation Agreement (no often advisable as set forth above) or a divorce with periods of cooling off where the divorce is not prosecuted in such an expedient matter but is done through a series of negotiations giving the parties time to decide what is best for them.

Bryan L. Salamone & Associates, P.C. is an eleven-attorney firm in Melville, New York. They are one of Long Island’s largest exclusively Divorce and Family Law attorney groups and the law firm handles hundreds of Divorce and Family Law cases ranging from Pre- and Post-Nuptial Agreements, Separation, Modification, Uncontested and Contested divorce. Although the firm of Bryan L. Salamone & Associates, P.C. is known for its aggressive representation of high-profile cases, it could also work with couples in connection with Mediation, Uncontested Divorce, and Post-Nuptial Agreements that will define their couples’ responsibilities one to each other during a time of difficulty in their marriage.

Bryan L. Salamone & Associates, P.C. offers free consultations in selected matters and can be found at www.divorcelawyerlongisland.com.