What is a notarized separation agreement
In the context of Family Law in New Jersey, an agreement like this is sometimes referred to as a "Marital Settlement Agreement" or just a "Settlement Agreement" and is very common in cases involving a couple who are getting divorced, even if they are not filing for divorce yet. A "Notarized Separation Agreement" is an agreement between two spouses or former spouses that has been notarized, meaning that the parties are both signing the agreement in the presence of a New Jersey Notary Public, on or before the Notary signs the agreement. The Notary will also provide them with an embossed seal.
Significantly , the "Notarization" of an agreement such as this is not the same thing as the parties having gone before a Judge, like they would to have the consent orders memorialized and incorporated into a Judgment of Divorce. In other words, just because a Separation Agreement is notarized, this does not mean that it is the same thing as a Judgment of Divorce. Particularly, you may see parties come to be represented in our firm having already signed a Separation Agreement but never having gotten divorced or incorporated such an agreement into a Judgment.
Why get an agreement notarized
Some states have adopted legislation that removes the obligation for a separation agreement to be notarized. However, there are still several reasons to have a notary review and notarize a separation agreement. First, some courts require or prefer a separation agreement to be notarized. Second, it provides additional assurance that the parties actually entered into the agreement. Third, although the majority of courts will enforce separation agreements that are not notarized, some states provide that failure to have a separation agreement notarized will result in the agreement not being enforceable. Fourth, if all the other parties agree to notarization, it makes sense to use a notary.
How to notarize a separation agreement
If you want to have your separation agreement notarized, it must be in writing. To prepare a written separation agreement, you need to consider the following information:
- The grounds for separation (e.g., adultery, cruelty, abandonment)
- The date of separation
- How you want to divide your property and debt (e.g., bank accounts, houses, credit cards)
- Where you plan to live after the separation
- How you will pay for household expenses after the separation
- Who will pay for the children’s expenses (e.g., child support)
- If there are children from the marriage, who gets custody of the children and when will the other parent be entitled to visitation
- How you will share legal and/or physical custody
- If there is spousal support, the terms of that support
- Provisions for payment of attorney fees in order to effectuate the separation agreement (we recommend always including this language).
After you have this information, you should contact a notary. Notaries are found at banks, various government offices, UPS stores, the court system (called a notary public), and many non-traditional places. Make sure the person who notarizes the agreement, however, has no interest in the agreement, meaning it cannot be a family member or friend.
When you have the completed separation agreement as well as information in the notary’s presence, the notary will create a notarial certificate certifying that he or she witnessed you signing the separation agreement. In addition, the notary may write various information on the document about the date, time, where the notarization took place, the type of identification submitted, etc. A notary must provide a signed copy of the document to the person who made the request for notarization.
Legal advantages of a notarized agreement
When it comes to creating a separation agreement, taking steps to ensure the validity of the agreement is essential. A notarized separation agreement allows you and your spouse to create a clear record of the terms of your divorce that upholds in court. While you and your spouse could decide to separate verbally and have a mutual understanding of the terms, it is beneficial to put everything in writing to save you and your spouse from difficulties down the line. Here are some of the legal benefits of a notarized separation agreement:
Clear Terms A notarized separation agreement provides a clear record of the terms of your separation and is legally binding to prevent either party from going back on their word if they change their mind later on. An agreement is useful in holding both parties accountable to the terms you have agreed upon even after everything is finalized. Additionally, it allows each party to have clarity on what will happen if one spouse violates the agreement.
Legal Protection A notarized separation agreement offers protection to both spouses. Having a third-party witness and notarize the document can help to validate the honesty of the agreement and show that neither party was coerced into accepting terms they did not agree upon. If you need to take your case to court, a separation agreement can also help to show evidence of what you and your spouse agreed to during the separation. It can also help you to decide the best way to divide your property, determine child custody and what each party is responsible for.
Avoiding Future Disputes Having a clear and notarized record of your agreed terms offers protection should any disputes arise and can save both parties the time and money of going through legal proceedings to resolve disputes in the future. When you do not go through the proper channels of creating a legally binding separation agreement, the potential for misunderstandings could lead to further conflict later on.
Going through the process of creating a separation agreement can be a long and complicated process. It may even require you to negotiate with your spouse to come to an agreement on various your terms. A notarized separation agreement can help to minimize stress and protect you and your spouse’s interests during this time. Be sure to take your separation agreement seriously and ensure that all necessary steps are taken to create a legally binding separation agreement.
Common pitfalls of a separation agreement
The most common mistake that people make is that they do not have a separation agreement in writing. They may have it verbal "oh yeah I’m getting divorced" but the crucial point here is "you need it in writing" so as to protect yourself. You don’t want to call up your spouse and say "hey honey , did we get divorced?" and they say "sure we did". So you absolutely need to have it in writing.
Another common mistake is when people have a written separation agreement but they didn’t bring it to court to get it notarized. It’s very important that you have someone who is a notary public review the signing of a separation agreement.
The most common mistake that people make is they do not understand that each state has its own laws. Some states are not community property states. For example, Michigan is not a community state. Okay. If you move to Michigan, you pay the courts to file for divorce and you’re living in Ohio, you never lived in Michigan, the courts in Michigan are going to apply Michigan law.
That would do it for the most common mistakes.
State requirements for a notarized agreement
State-Specific Requirements may be different and more stringent than the notarization requirements for a Separation Agreement. For instance, in California, notarization is not required for all forms of postmarital Agreements, including postmarital Separation Agreements. However, California Family Code §1610 et seq. includes a statute requiring notarization of property right Agreements after separation (postmarital) and requires that the document include a declaration of full disclosure on the first page if signed before the date of separation.
In Alabama, while a Separation Agreement does not need to be notarized, any court-approved divorce decree incorporating the Separation Agreement can be signed by a Notary Public, or even a person authorized to perform marriages. See Alabama Uniform Electronic Transactions Act, Ala. Code § 8-1A-1 (2010) (establishing an alternative form of signing and filing that requires notarization or electronic submission of a court-approved document).
In Mississippi, on the other hand, if a Separation Agreement is to be incorporated into a Judgment, the Separation Agreement must even be sworn to by both parties. See Miss. Code Ann. § 93-5-2 (2006) (stating that any agreement to settle property rights and alimony shall be sworn to by the parties and may be incorporated into the Judgment).
Can you fight a notarized agreement
In general, written agreements may be challenged regardless of whether they’re notarized or not. A notarization tends to lend credence to the validity of an agreement, but anyone can put pen to paper, get something notarized, and then later try to invalidate it in court. A Judge will usually take a notary’s word as to whether the person who signed a document did, in fact, personally appear before him or her to acknowledge the signature on a written agreement. So, this affords the person relying on the agreement with a reasonable expectation that it is valid and binding.
However, where fraud or coercion are at play, or if there has been a significant change in circumstances since the time the agreement was executed, the agreement may no longer be valid. If the terms of the agreement are extremely unfair to one side such that it raises a question of whether meaningful understanding or assent was absent when the agreement was made, it may be subject to challenge as well. The party challenging the agreement has the burden of proof to demonstrate at trial that required elements of an effective waiver of the right to seek a judicial determination of support were not present when the waiver was initially executed.
Getting assistance with a notarized agreement
The process of properly notarizing an agreement or other document related to a divorce is complex and fraught with potential pitfalls. For this reason, you should do your best to take a cautious and responsible approach when trying to obtain a notarized agreement for a divorce-related issue. Rather than try to sort out notarization requirements and procedures on your own, you should consult with a professional to ensure that the document you execute is valid and enforceable in a court of law. An attorney can help you with the notarization process when preparing a separation agreement in multiple ways. They can help you understand the legal steps you need to complete, as well as the consequences of failing to properly execute the agreement. This also means being able to tell you precisely when it’s necessary to have a notary involved with the preparation of a document. Your lawyer will be able to communicate clearly to you what steps you must take , so you do not harm your position in a legal proceeding or miss out on crucial legal protections. In many cases, having an attorney to go through the process with you will save you a significant amount of time and give you peace of mind throughout every step of a complicated process. At the very least, it is helpful to have a consultation with a lawyer to at least better understand where you might run into trouble while attempting to notarize an agreement, so you can be better prepared to avoid mistakes. At the same time, a failure to have a proper legal arrangement is one that is difficult to rectify on your own, so it is wise forethought to bring an attorney into the situation before you end up making an error that you could have easily avoided by seeking legal advice.
