A marital separation agreement is a contract devised between two spouses having separated. The terms of the agreement involve provisions associated with child custody, visitation, finances, paying bills and ownership over family pets. The separation agreement can be merged into a final divorce, if the parties desire. If the parties reconcile or desire a different arrangement post-divorce, the separation agreement can be set aside upon agreement by the spouses. Most states require the parties to commence a separate action to set aside the agreement -- and treat the matter as one of contract law -- not family law. The agreement may also be set aside in instances of fraud, duress or mistake.
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Determine the appropriate cause of action, with respect to the separation agreement.
If you wish to cancel the entire contract and its terms, it is required to commence a proceeding in the trial court to rescind or revoke the contract.
If you wish to amend certain terms, but keep the overall contract in tact, you may be able to make a motion to the family court with jurisdiction over the separation or divorce proceeding.
A complete set aside of the agreement will likely require a separate legal proceeding.
Draft a petition seeking to set aside a marital separation agreement. A legal petition must include information identifying the plaintiff and defendant in the matter; in this case the plaintiff would be the spouse seeking to set aside the agreement and the defendant would be the other spouse.
Then, describe the facts relevant to setting aside the agreement. Be as specific as possible in describing the facts leading up to the petition to set aside the agreement. The petition should also include statutory language relevant to contracts and setting them aside. Lastly, the petition should connect the facts with the law and plead that the plaintiff is entitled to relief in the proceeding.
Review the defendant's answer pleading. Within thirty days of the plaintiff submitting his petition to set aside a marital separation agreement, the defendant must provide an answer to the petition either denying plaintiff's facts or providing a different explanation for the conflict.
Attend the hearing. After both parties have filed their briefs or petitions -- either in support of -- or opposing setting aside a separation agreement, the court will set a date where both parties will come to court and argue the merits of their positions.
Understand the affect of the court's ruling. If the court decrees the agreement invalid, the marital separation agreement will be nullified and voided. At this point, the parties no longer have a valid contract in place to guide the particulars of their separation. If the parties share children, they will likely need to come to an agreement over matters of the children and how to handle child support, custody and visitation issues. If the court denies the plaintiff's plea to nullify the agreement, it will remain in place, until the parties reconcile or a divorce agreement is reached.
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