Processing the Divorce Legal Paperwork
As with any legal proceeding, separation and divorce require a lot of paperwork.
The first step each divorcing couple must take is to create a roadmap. This document describes how you will disassemble your marriage and distribute its practical and financial parts.
If you have children, the roadmap also covers custody, child support, and parenting plans as needed.
In this post, I review the steps that get the details of the roadmap into a legal document called SAPSA(1).
Creating the Initial Paperwork
In my divorce mediation practice, this roadmap takes the form of a Memorandum of Understanding, or MOU. I work with each couple as they make many decisions, summarizing them in the MOU. I briefly review its topics in my post, “The Most Important Document in Divorce.” For more details on those decisions, please review my other posts such as child custody and support, assets, debts, investments, etc.
The MOU is a non-binding, non-legal summary of your decisions. It’s also not enforceable. Neither the couple nor the mediator signs it.
Transforming the MOU into a SAPSA
When your MOU is ready to be processed into the legal system, an attorney must transfer its information into a Separation and Property Settlement Agreement (SAPSA). The attorney ensures the document is properly organized and worded. Its language is the foundation for your divorce.
You have choices regarding the attorney you use to create the Separation Agreement. I often refer couples to a neutral attorney, someone who is not representing either of you individually, to act as a scribe and put the MOU details into the proper form and language.
It’s still prudent to each have your own attorney look over the MOU on your behalf before the scribe attorney processes the SAPSA.
The SAPSA created from your MOU is a voluntary contract between you and your spouse. If you and your spouse have not been able to come to agreement on the marital issues either by yourselves or through mediation or attorneys, then the only option becomes having the courts make those decisions.
Once the SAPSA is finalized, it’s considered difficult to prevail in changing its terms. To change or contest a finalized SAPSA before it is converted to a final divorce decree, you would have to claim:
- Fraud.
- The information contained in the agreement had not been fully disclosed to you.
- You didn’t have an opportunity to confer with an attorney.
- Your spouse withheld information.
The signed SAPSA is contractually binding and enforceable. If one party is not in compliance with the agreement, it can be enforced by discussing the issue(s) with an attorney who will represent you in the court system, as appropriate.
Processing a Divorce
If you want a divorce, the SAPSA becomes the foundation document for the proceedings. In NYS there are as many as 26 additional documents that need to be processed to create the total divorce packet. Please refer to this site’s Resources section on NYS Divorce and Child Custody for more information on NYS divorce forms.
Options for preparing the divorce documents
- A neutral, scribe attorney prepares the documents required to commence the divorce action with the court. You and your spouse will sign your documents together.
- If you use separate attorneys, the same documents will be signed separately and transferred between attorneys. The plaintiff’s attorney will file the documents.
Once you have contacted the scribe attorney or separate attorneys, the mediator forwards the approved MOU to the appropriate attorney(s), who completes the papers. The scribe or plaintiff attorney then submits all of the documents (called a Judgment Roll) to the court. The wait begins for a judge to review and return them to the filing attorney. The wait may take as little as three to six weeks, or it may be longer, depending on the time of year the filing is made, the case load of the judge assigned, and the county in which the divorce is filed.
The Finalized Divorce
The filing attorney receives the Judgment Roll back from the court and confirms that the judge has signed the required documents. Then the Judgment Roll is filed in the county clerk’s office, where the filing of the Summons and Complaint at the commencement of the divorce action was filed. This is a sealed record. No one but the attorney(s) of record and the two spouses can open this record unless they use a signed and notarized document to designate a surrogate who can open it.
(1) NOTE: I use the term Separation and Property Settlement Agreement (SAPSA) in this blog only to describe the legal version of the separation agreement. Throughout this blog, I refer to a Memorandum of Understanding (MOU) or separation agreement as the non-binding document that is created for clients by a mediator.
Resources
- Marital Separation Agreements
- Understanding legal separation
- 5 Financial Benefits of a Legal Separation Agreement
- Legal Separation vs. Divorce
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