NEW REPORT SAYS 79% OF SEPARATIONS END IN DIVORCE — CAN POST-MARITAL AGREEMENTS EASE THE PAIN?
Posted: May 30, 2012 Filed under: Alimony, Child Support, Family law, post-marital agreements, prenuptial / premarital agreements, Property Rights | Tags: alimony, child support, divorce, marital separation, post-marital agreement, prenup, prenuptial agreement, separation, separation agreements 3 Comments
According to a recent article published in USA Today, a study of over 7000 individuals conducted by researchers at the Ohio State University found that 79% of marital separations end in divorce.
The study found that the average length of separations that resulted in reconciliation was two years, while the average of those ending in divorce was three years. Surprisingly, the chances of reconciliation virtually disappeared among this group beyond the three-year mark. While many couples who lived apart for three or more years eventually divorced, others simply continued the separation indefinitely.
The study found that women with children under 5 years old were more likely to separate from their husbands rather than to divorce immediately.
All of this means that a great number of couples either delay or forego altogether the protection of laws designed to shield them financially in the event their marriage comes apart. These include laws governing the division of marital assets as well as laws regarding spousal and child support.
In a relatively new trend, some couples seriously contemplating trial separation begin the experiment by negotiating a formal post-marital agreement that sets out their respective financial obligations while still legally married and also in the event of an eventual divorce. In this way, they are able to enter into a trial separation — or in some cases even continue living under the same roof — with the security of an agreed-upon set of rules. This provides each of them with a degree of certainty about their financial future that would not otherwise be possible absent divorce litigation. With financial issues resolved, they are better able to understand the choices they face and to focus on other issues in their relationship.
Just like prenuptial agreements, post-marital agreements must meet certain standards in order to be enforceable. These standards are governed by the laws of individual states, but certain features are universal. First, they must be accompanied by full mutual disclosure of financial information. Second, they must be entered into voluntarily and both parties must have had at least the opportunity to have the agreement reviewed by independent counsel. All courts reserve the right to review both prenuptial agreements and post-marital agreements for fairness, but, provided there are no egregious flaws in the contract, courts generally support and enforce them as a matter of public policy.
Impending separation is not the only reason to consider a post-marital agreement. Events such as the birth of a child, a return to school, or the launch of a business can be good reason for couples to consider adding a post-marital agreement to their financial plan.
I am not an expert in domestic relations law, just know from first hand experience that here in New York State, without legal grounds for a divorce (abuse, abandonment, adultery, etc.), you must have a separation agreement and live apart for one year before you can get a divorce. There is no “no-fault” divorce in this state – unless this has changed very recently – someone please correct me if it has. Separation agreements are common here. Though, I know people who have been separated, with children, for many years without divorcing.
In my personal case, it was imperative that I have a separation agreement because my husband had a substance abuse issue, we had a child together, and I needed some financial support for day care so i could continue working and support my child and myself. Because of my husbands “issues”, it was necessary to get the state/county involved in garnishing his wages for child support and day care because he would withhold money as a means of “punishment” for me leaving him.
A pre-nuptial agreement goes against everything I believe in about marriage…yet, from a legal and financial viewpoint, I understand why in certain circumstances people feel they are necessary. In matters of separation, I think it’s imperative there be a post-marriage agreement, regardless of how “friendly” the separation may be at the time it occurs. Things change: the other spouse may begin to date; the spouse with the higher-paying job may enjoy a better standard of living, causing resentment; the children may choose to spend more time with one parent over the other, causing both financial issues and emotional issues. In other words, friendly can turn into hostile in no time flat.
Set up a fair division of assets, child support, custody arrangement, disposition of the family home, etc., while you are still speaking to each other. Or if it is already ugly, have a mediator do it. It’s in everyone’s best interest.
New York has “no-fault” divorce, effective 2010.
Well, thank goodness that NYS was finally dragged kicking and screaming into the modern era!! (My divorce was in 2002.)
Thanks for the setting me straight, Sherry. I appreciate it.