Carolyn Goodman

Attorney At Law

Why Is It Important To Have A Separation Agreement?

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I receive many calls from potential clients who tell me that they are ready to file for an Uncontested Divorce.

When I ask some basic questions regarding property and retirement accounts, sometimes it becomes clear that it would be best to prepare a Separation Agreement so that all potential issues, such as property ownership, debt division, tax issues, child support, and custody, etc. are resolved prior to filing for divorce.

It is also a very good idea to have a Separation Agreement even if you are separating and are not sure if you will end up filing for divorce.  You need to be protected so that you are not arguing over every issue that may arise.  An Agreement will resolve the issues so you can move on with your life without constant disagreements.

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Physical Custody and Legal Custody in DC Divorce

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There are many ways to determine who will have custody of your children when going through a separation or divorce in DC.  

There is a distinction between physical custody and legal custody.

  • Physical custody refers to the living arrangements for your child, i.e. where your child eats and sleeps.
  • Legal custody refers to the legal responsibility for your child, i.e. the decision-making related to your child’s health and medical treatment, education, and general welfare.

You and your spouse can negotiate any type of custody arrangement as long as your child’s best interests are served.  It is best if both you and your spouse have continuing contact with your child.

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How Do I File For Divorce In DC?

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Filing for divorce in DC is not a difficult process.  However, before you can file for divorce in DC, you must be sure that all of the issues between you and your spouse are settled.  Otherwise, you will have to file for divorce and go through the process as if the divorce is contested. This process is longer and more expensive than filing for an Uncontested Divorce.

Once you have settled all the outstanding issues with your spouse, such as division of your marital property, custody of your children, child support, division of retirement benefits, division of debts, etc., through a Separation Agreement, there are two other requirements that must be met before you can file for divorce in DC.

First, you must meet the residency requirement. This says that one of you must have been a continuous resident of DC for six months before you file for divorce.

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Do I Need A Separation Agreement?

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It is a good idea to have a Separation Agreement in place.

You are not required to have a Separation Agreement. However, it is a good idea to have one if you have any issues that remain unresolved with your spouse.

This will help you avoid a lengthy court process in which the Judge will have to decide things for you.

Verbal agreements between you and your spouse will not be enforced by the court. Only written agreements that are signed by both of you in the presence of a notary can be enforced.

A Separation Agreement, sometimes called a Property Settlement Agreement or Marital Settlement Agreement is a written contract that protects you and helps make sure that your spouse lives up to his or her obligations that are outlined in the agreement.  

An agreement will clearly spell out the benefits you are entitled to and the obligations you have.

A Separation Agreement resolves all the issues and in doing so protects you and your spouse for the future. It answers questions such as:

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What Happens To Our Home When We Divorce?

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A common question people ask me when they think they will separate and divorce is, “What will happen to my home?”

This can be a very emotional issue. The home may be associated with both pleasant memories and sad memories. There are several options to consider when it comes to the ownership of your home during divorce, and it is very important to discuss the various possibilities with your family law attorney.

There is equity in your home as well as debt. Home equity is the difference between the market value of your home (what you could sell it for) and the amount you owe on your home (your mortgage, line of credit, home equity loan, etc.).

Some of the options to consider are:

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What is a Separation Agreement?

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A Marital Separation Agreement or a Property Settlement Agreement is a written contract between you and your spouse.

It settles all of the issues that have arisen during your marriage.

The Separation Agreement spells out your rights and settles issues such as what will happen to your property, your bank accounts, your debts, child support, custody, health insurance, alimony, how retirement accounts will be divided, etc. It specifically lays out the terms of your separation and divorce, if you decide to proceed with a divorce.

What Information Is Helpful To Your Attorney?

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Your divorce lawyer will need basic biographical information from you along with financial information.

It is important to gather as much financial information as possible including a list of all assets (i.e. property you own, bank accounts, stocks, retirement accounts, etc.) and all debts (i.e. credit cards, mortgages, bank loans, etc.).

This information is helpful when preparing a Separation Agreement and is also necessary if you cannot settle your case and have to resolve it through the court system.

Division of Property During Divorce in DC

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All property and all debts acquired during your marriage are considered marital property. When you divorce, the property and the debt must be divided. This does not mean that it is divided equally. In DC, an equitable division is made.

Many factors are looked at in determining how to divide your property and your debt fairly and equitably.  

Some of the factors that are considered are: the length of your marriage; your age; occupation; amount and sources of your income; your ability to find a job; the contribution made by one of you to help educate or help develop the career of the other one;  whether you or your spouse interrupted your career to stay at home to take care of your children, etc.  

It is important to make a list of all of your assets and all of your debt to show to your divorce attorney. It is also important to know whether the asset or debt was brought to the marriage or whether it accumulated during the marriage.

Dependency Exemption for Children

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It is common, particularly around tax time, to wonder who is entitled to claim the dependency exemption for your children on your income tax return.

Usually your Separation Agreement or divorce decree will specify which parent is allowed to claim the deduction.

Sometimes a Separation Agreement may say that only one parent is able to claim it. Some people agree to alternate years. You can also agree to change your agreement depending on who gets the most benefit from the deduction.

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Divorce and Separation Agreements in Washington DC

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Many people ask me whether I can represent both parties in a divorce.

The answer is NO.

It is unethical and is a conflict of interest for one attorney to provide advice to both parties whether it is a friendly situation or not.

In a case where things are relatively friendly, many times I prepare a Separation Agreement based on what my client and his or her spouse have agreed upon. It is then up to my client’s spouse to decide if he or she wants to retain an attorney to review the draft Agreement.

It is always best for each person to have his or her own attorney to provide advice and answer questions. But, it is up to each person independently.

Questions And Answers

Your current situation has probably generated many questions. Here are some short answers to questions you may have about Divorce, Separation Agreements, Property Division, Child Custody and more.

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