The process of separation and divorce can be difficult in many ways – financially, emotionally, and legally. It can be hard to learn what you need to know to make informed decisions and to protect your rights. Sometimes a misstep cannot be fixed.
What are some traps for the unwary in the process of separation and divorce?
- Accidentally cutting off your right to have the court divide property and debts: If a divorce judgment is entered by the court before property and debts have been divided, and the judgment does not specifically say the court continues to have the right to make that division, that right is lost. If that happens, any assets titled in your name remain yours; any assets titled in your spouse’s name remain theirs. You cannot ask the court later to give you the vehicle you have been driving that is titled in your spouse’s name you cannot seek a division of your spouse’s retirement plan later. Similarly, if this happens, debts in your name are your responsibility, and you cannot ask a judge later to make your spouse contribute to payment of those debts. Debts in your spouse’s name are your spouse’s responsibility. Joint property (or debts) continue to be owned (or owed) together in equal shares, which can be messy.
- Accidentally cutting off your right to alimony: This works like the property division rule. If you think you would have a right to alimony, but you do not specifically mention it in the divorce judgment, that right goes away when the divorce judgment is signed.
- No “do-overs” on property/debt provisions or on alimony waivers in a Separation Agreement: Once you sign a Separation Agreement, you are stuck with the property and debt provisions for better or worse. If the Separation Agreement waives alimony, that claim is gone for good. You cannot change the Separation Agreement unless the other spouse agrees. Usually, you cannot ask a court to rule differently if you decide later that the Agreement you signed was not fair. For example, if you didn’t know when you signed that you had a right to part of your spouse’s retirement plan, but the Agreement gives the plan to your spouse, a court cannot change that result.
- Separation Agreement provisions concerning child support or child custody: You may know that a court always has jurisdiction to change child custody and child support provisions to protect the child, even if parents have agreed upon them. However, you should be careful when setting custody or child support arrangements in a Separation Agreement. By agreeing to particular custody or support terms, the parties create a presumption for the court that those arrangements are fair, reasonable and in the child’s best interest. If you want to change those arrangements, you have the burden of showing why those arrangements were good and fair when the Agreement was signed, but now no longer are. That is a harder job for you than if there were no arrangements already in a Separation Agreement.
Separation and divorce are among the most difficult and painful experiences a person may go through. Emotions may run high. Financial pressures may increase. Children may need more of your time and attention to adjust. It can be hard to learn what you need to learn to protect your rights in that situation. It is important to learn those rights, though, as the decisions you make may have permanent or long-lasting consequences.
This article was last updated in January 2020.