We are often contacted by people who initially want to know how to separate from their spouse or have already separated and want to know what the next step is. Two important issues must be evaluated in either situation. A children, must be developed. Quite frequently parties sign a document known as a “separation agreement” which memorializes the actual date of separation. This agreement may include short-term financial, custodial or other provisions the parties can live with until ultimately resolved later in the case by settlement or trial.
That is especially true when the children are young. Deciding “access” (i.e. Clearly, separating is most difficult in situations when children are involved. visitation) may be one of the most difficult issues to initially resolve, in addition to child support and temporary alimony. The better practice is to attempt to negotiate and memorialize the parties’ agreement before separation if at all possible. Such terms as these are typically temporary in nature and are used to facilitate the parties’ separation and remain in place until a final settlement or trial concerning custody, access and child support.
The attorney must construct and analyze a variety of possible solutions to facilitate the separation while at the same time taking into consideration the best interest of minor children. There is no simple formula to accomplish that. It requires intellectual elbow grease.
An attorney cannot represent both parties at anytime during the entire separation and/or divorce process. A party cannot assume their spouse’s attorney will protect their rights while at the same time protecting their spouse’s interests. That does not happen. An unrepresented spouse should never sign a settlement agreement which seeks to resolve some or all of the disputed issues without the benefit of the legal advice from their own separate attorney.
