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There are three basic ways in which your marital issues can be resolved. These three avenues are court action, mediation and separation agreement. Each venue has positive and negative aspects. Court actions are usually the most time consuming and expensive, and provide the least opportunity for personal involvement in the crafting of the order. However, when there are issues which cannot be resolved to a party's satisfaction or when, for whatever reason, a party is unwilling or unable to enter into an agreement, having a court decide matters is the way to go. At times it will become evident that negotiations are at a standstill and it becomes both less costly and faster to proceed to court. When proceeding to court, you are able to take advantage of discovery laws which require parties to provide information under oath, and provide means of obtaining information from third parties.
Mediation is a conflict resolution process in which the attorney acts as a mediator and not as an advocate for either party. For more information, please see our section discussing mediation.
A separation agreement is the most common means to divide property and settle other issues in a separation or divorce. An agreement is a contract entered into between the parties. It is enforceable as any other contract, if a party breaches the agreement the other party can proceed to court for specific performance or money damages.
Regardless of whether your matter is a complex one or an uncontested distribution, we need to be able to advise you as to your rights and obligations. In order to draft an effective agreement, your attorney will need you to provide a list of your assets and obligations. While many people do not have all the necessary information when they begin the separation process, it is important to gather the information as quickly as possible so that matters can proceed.
In addition, you should provide a written history of your marriage, paying particular attention to any matters you believe to be significant. Some issues which could make a difference include:
(1) The marital misconduct of either of the spouses.
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses,
or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative
education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The
relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties.
Separation agreements offer the best opportunity to be flexible and creative. Do not underestimate the need to be equally prepared for negotiations of an agreement as for court. Being able to back up negotiations with facts will lend credence to any position. An amorphous statements that “My client hopes to return to college” is no where near as persuasive as “My client has made inquiries as to the teaching program and has determined that she needs 29 credits which she can earn in 2 years if she attends school full time and then she needs an additional year to obtain employment and stabilize her job situation.”
Your attorney will gather and review your informatin then consult with you as to your needs and desires. You will then review a draft agreement with the attorney who will explain the provisions in detail and make such changes as you request. The draft will be sent to the opposing party or that party's attorney. You should expect that the opposing party will request certain changes in the agreement and be open to that party's wants and needs. The final document will be signed by eah party and notarized.
In most cases, unless specifically stated otherwise, your agreement is a final document and cannot be modified unless each party agrees. You should not sign an agreement if you do not think you can abide by its terms. Do not make the mistake of believing it is temporary in nature or subject to change. A separation agreement is a contract governing the separation of the parties, the division of any and all assets, obligations, rights and liabilities associated with the parties' marriage to one another and to setting forth terms for the custody and support of the children of the marriage. It is important to have an advocate for you whom you can trust to both know the law and zealosly represent your position.
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Copyright © 2005 Bender Law Offices P.C., All Rights
Reserved.
Divorce Lawyers, Separation Attorneys, Family Law,
International Divorce, Mediation, Agreements, Child
Custody, Court Services, Alimony, Domestic Violence,
Child Support, Property Distribution, Spousal
Support
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