H. Michael Stern is a Separation, Divorce and Family Lawyer with over 30 years of experience. Choosing the right lawyer is one of the most important decisions you will make.
Below is information to be reviewed by all individuals considering a separation.
If it is important for the monied spouse to be able to deduct maintenance (alimony) from his or her State and federal taxes, then time is running out. The deduction will be phased out at the end of 2018. There are two ways to preserve this deduction. The first is a Judgment of Divorce signed and entered in 2018 which provides for the deductibility of maintenance to the payor. The second way is a separation agreement signed and notarized by both parties in 2018 which provides for the deductibility of maintenance to the payor.
So, as time is running out, the time to get a separation agreement in place is in calendar year 2018 if maintenance is a consideration.
There is simply no time to waste if the parties are interested in addressing the issue of deductibility of maintenance in their separation agreement. With unpredictable downstate (New York) divorce calendars, one cannot be sure that an uncontested divorce will be finalized before the deduction is phased out. The timing of a separation agreement is still within the control of the parties and provides peace of mind that the maintenance deduction is in place.
Here are some of my other thoughts on the efficacy of New York separation agreements in 2018. Under the right circumstances though, a separation agreement still offers another option to married couples who no longer wish to cohabit. The separation agreement permits a married couple to live apart for a specific term or for the rest of their lives. It is not an official document per se; no governmental authority has to approve of the terms of a separation agreement unless an effort to enforce those terms is required or a divorce is sought.
A positive aspect of a separation agreement in the present day is that it can fulfill the statutory requirements of Domestic Relations Law 170, subdivision 7 which permits spouses to divorce based on the irretrievable breakdown of the marriage for at least six months. In order for this ground for divorce to go to final judgment, the following issues must be resolved: equitable distribution; the payment or waiver of spousal support; the payment of child support; the payment of counsel fees, experts’ fees and expenses; and, the custody and visitation of the children or the marriage.
A properly executed separation agreement can cover all of these topics, thereby avoiding the need for a hearing in Court to decide these issues. In my experience, the Courts have not imposed a waiting period (previously one year under Domestic Relations Law 170, subdivision 6) where separation agreement forms the basis of a divorce sought upon the irretrievable breakdown of the marriage for at least six months. Incidentally, additional issues can also be resolved in a separation agreement that are not listed above, including, but not limited to: health insurance; life insurance; and, college expenses, to name a few.
There is a double edge sword that needs to be addressed in any situation involving the preparation of a separation agreement that deals with health insurance issues. One benefit of a separation agreement is that, in most instances, a separation does not result in the automatic termination of health care coverage for the spouse of the insured in New York. In many cases, a separation agreement can provide for ongoing health insurance coverage for the spouse of the insured for a specific length of time after the separation agreement is signed. In stark contrast, coverage obtained through the insured spouse’s plan always terminates upon divorce (unless extended by COBRA). In many instances, the cost of maintaining employer-based family coverage is far less than the cost of securing an individual plan. The other side of the coin is that care must be exercised when negotiating terms that shift the cost of coverage from the uninsured spouse to the insured spouse. Accordingly, present day provisions which require the insured to maintain equivalent coverage until divorce or, some other date, should take into account the variability of potential adverse scenarios involving the insured. Changes to Federal health insurance law is a politically polarizing political topic and the future is uncertain. Thus, health insurance should be examined and extensively discussed in formulating any present day separation agreement.
A point worth mentioning is that there is no guarantee that terms concerning child support, custody and visitation set forth in a separation agreement will be enforced if circumstances change and one of the parties wants a modification after the agreement is signed. There are legal thresholds that must be met by the dissatisfied party before the Court will entertain a change to the terms of the agreement. The New York Family Court will not enforce a separation agreement regarding child support, child custody and visitation rights. Accordingly, the New York Family Court may ignore the terms of the agreement and render a decision which significantly alters the parties’ agreement. One caveat though, if the separation agreement has been incorporated into a divorce judgment, the Family Court will typically enforce the terms of the agreement, absent compelling new circumstances. If enforcement of the terms of a separation agreement is needed (where no divorce has been granted upon it), the Supreme Court is the appropriate Court for that action in New York. Nevertheless, the Supreme Court will always have the final word on whether enforcement or a different result will occur. There are intricacies in the law governing contract interpretation which prohibit thorough explanation here as to why that may occur.
In my practice, the separation agreement is still the preferred method of settling a matter out of court between spouses with varying interests, needs and priorities. As I see it, in most cases, the benefits of entering into a separation agreement still outweigh any shortcomings.
Please contact Attorney H. Michael Stern at 516-747-2290 for a free initial consultation to discuss your separation or divorce.
The office is located in Nassau County at 666 Old Country Road, Garden City, NY.