Divorce is painful. In some instances, parties who wish to remain together find the peace and resolution they are seeking through a legal separation or postnuptial agreement. These legal constructs enable a marriage to continue while providing certainty by defining the rights and entitlements of each party.
Legal separation is an option when spouses are hesitant to divorce but wish to formally separate their financial affairs. Parties may wish to remain married, yet separate financial and personal matters for a variety of reasons, including religion, insurance coverage, tax ramifications, or the emotional and social consequences of a divorce. A legal separation grants relief similar to a divorce, yet the parties remain married and, consequently, cannot marry others. Separated parties may remain separated for life, divorce, or reconcile and resume life as a married couple.
A legal separation allocates all assets and liabilities and decides issues of support and parenting rights/responsibilities. Some matters determined during a separation are final, but others might be revisited. For example, an asset division pursuant to a legal separation is final and determined using the same standard applicable to divorces. In contrast, spousal support, child support, and parenting rights might be revisited.
Since final rights to all assets would be decided in a separation, the process of obtaining a legal separation can be like obtaining a divorce, but without the benefit of finality. Discovery and document exchanges are necessary. Agreements must be properly documented, signed, and approved by the court. If a legal separation is later converted to divorce, the parties may renegotiate some, but not all, issues.
Postnuptial agreements have enjoyed increasing popularity throughout the country. Such agreements allow married parties to reach an agreement on the distribution of their income, assets, and liabilities upon death or divorce. Postnuptial agreements provide financial independence and security while allowing a marriage to continue. In the event of divorce, a well-drafted postnuptial agreement that follows the necessary formalities will likely be enforced and greatly simplify the divorce process.
Like prenuptial agreements, postnuptial agreements are reviewed for fairness both at the time of execution and at the time of enforcement. Courts examine various factors in determining the enforceability of a postnuptial agreement, including fairness, voluntariness, adequacy of disclosure, the ability of each party to negotiate, and whether the agreement was the product of mistake, duress or misrepresentation. If possible, it is ideal for spouses considering a postnuptial agreement to speak with each other about their goals and terms desired for the agreement in advance. Such a conversation will help guide counsel, avoid difficulty related to the agreement at home, reduce cost, and expedite the process. Discussion and agreement may also bolster enforceability. Each spouse should retain counsel for review and negotiation of the postnuptial agreement. Although representation by an attorney is not an absolute requirement, it significantly increases the likelihood of a fair, comprehensive, enforceable agreement.
Legal separation and postnuptial agreements provide parties with options to remain married by establishing enforceable rights and entitlements. In some instances, this clarity may preserve a marriage. Whether a party wishes to use these legal constructs to remain in a marriage is a very personal decision.