Saturday, February 28, 2009

Covering Your Legal Needs In A Divorce

By Jack Hammerson

It is extremely emotional for a married couple to consider divorce. A marriage is coming to an end and that can either elicit strong negative emotions or it can bring out a huge sigh of relief from both parties. Sometimes a marriage just does not work and when that happens, and both sides come to the conclusion that there is nothing else let to do, then it is time for a divorce.

From a legal standpoint a divorce is the dissolving of a legal partnership that has financial ramifications that need to be addressed before the legal process is complete. If a divorce is charged with negative emotions on both sides then it can become a long and drawn out process but the government is not interested in how much the couple no longer likes each other. To the government the only thing they are worried about is that the marriage ends legally, and a the correct ending to a legal partnership and the more the couple can work together towards that end the better off both parties will be.

Both sides will lose out in some way if the divorce is strongly contested so the best way to make sure that each side does not walk away feeling like they got the wrong end of the deal is to negotiate a separation agreement through lawyers prior to filing for divorce. Do not try and negotiate a separation agreement on your own even if the couple seems to be getting along relatively well. A separation agreement should be negotiated through lawyers to make sure all of the proper legal angles are covered. Since the purpose of a separation agreement is to become the legal framework to the divorce then getting the legal aspects of it correct are extremely important.

There needs to be an agreement as to how the finances will be divided up between the couple. The legal system will want to account for every debt the couple has during the divorce and it does not matter whose name is on the debt. If the husband has a credit card in his name then it needs to be put in the separation agreement that the husband assumes responsibility for that particular debt. A separation agreement and divorce does not change the terms of the original debt agreement but it can assign responsibility to who has to pay it once the divorce is final. So, if both names are on a debt with the husband as a primary borrower and the wife as co-signer then even though they both agree that the husband is responsible for paying the debt the wife is still co-signer and still responsible for the pay off of the debt if the husband defaults. The finances will need to be divided in order for the divorce to be finalized.

If there was an agreement in place before to the marriage in regards to property purchased during the marriage then that needs to be added into the separation agreement. If not then there needs to be an official separation of the marital property that both parties agree to. In the separation agreement it can be something as basic as the statement that marital property has been divided between the couple and agreed to or something along those lines. In the case of marital property, unless it is a matter of millions of dollars, the courts will not use this as a reason to hold up the divorce. If it is stated in the separation agreement that the property is amicably divided then the court will usually accept this. It is up to the lawyers to decide how much detail needs to go into separated marital property.

Conflicts of interest such as child support, visitation with the children, and who the children will reside with are usually left to the family court to decide. You can attempt to include stipulations in the separation agreement that address the children but the courts usually make those decisions regardless of what the separation agreement says. However it never hurts to put what the couple has agreed to in the separation agreement for the family court to consider.

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