Almost every new client tends to ask the same question in the initial call and meeting, and the answer tends to be quite confusing for lay-people to understand: What kind of agreement do I want at the end of my collaborative divorce process? The answer is: it depends upon what you want to accomplish! To follow is a quick summary to help the new/confused client.
1. Interim Agreement, a.k.a. “moving-out agreement”:
- usually a short, “quick” agreement because one party is moving out of the marital home, temporarily or permanently
- both parties want some legal protection but they do not want to immediately negotiate all the terms of a full separation or settlement agreement.
- the Agreement tends to contain provisions such as: leaving the home will not be construed as abandonment of the home or the children (if applicable), a temporary parenting schedule so both parents know when they will see the children, an agreement regarding where paychecks will be deposited and how expenses will be paid in the interim period OR a temporary support plan if incomes and bank accounts will be divided.
2. Separation Agreement, a.k.a. Stipulation of Settlement or Settlement Agreement:
- Generally contains all the substantive issues you need to settle your separation or divorce, such as the division of assets and debts, child support and/or spousal support, a parenting schedule, agreements regarding insurance, taxes, etc.
- If you sign your agreement and do not sign divorce papers at the same time, the agreement is called a Separation Agreement. If you sign the agreement at the same time as your divorce papers, your agreement is technically “settling your divorce” so the Agreement would be called a Stipulation of Settlement or Settlement Agreement.
3. Post-nuptial Agreement:
- For married couples who want to stay married but they want to legally settle or enforce certain issues in the event of a divorce or death of one of the parties in the future.
- It’s helpful to think of a post-nuptial agreement as a prenuptial agreement for couples who are already married. For example, a married couple has an issue regarding one party receiving an inheritance and using a portion of the inheritance to buy a house.
What are “uncontested divorce papers?
- Divorce papers are separate court documents which must be prepared and filed in court, along with your Separation Agreement (or Stipulation of Settlement/Settlement Agreement).
- If the parties agree to file divorce papers, the divorce papers are called “uncontested divorce papers” because the defendant party (i.e. the party who is technically “sued by the plaintiff” on paper) accepts service of the divorce papers and simply doesn’t contest to the grounds for divorce or the judge signing the divorce, making it final.
- When filing divorce papers, parties can still use one of New York’s “fault grounds” in the divorce papers, such as abandonment, mental cruelty or adultery, but New York also now has a no-fault ground which is most commonly used in Collaborative Divorce, i.e. that the marriage has been “irretrievably broken for at least six months”.
Deciding which agreement you will sign and whether or not to file divorce papers are very often discussed and agreed upon in the context of the Collaborative Divorce process so there is no need to stress if you are unsure or confused, individually or as a couple, regarding what you want when you begin the process.